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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS CARIBE HOME CENTER, INC. LUCY ASCEt\CIO DIVISION OF ST. CROIX Plaintiff } ) ) ) vs ) ) ) ) Defendant CASE NO. SX-12-SM-OC00459 ACTION FOR: DEBT - SMALL CLAIMS NOTICE OF ENTRY OF ORDER TO. CARl BE HOME CENTER, INC. LUCY ASCENCIO Please take notice that on Novernber 04, 2013 a(n) ORDER dated October 29, 2013 was enterea by the Clerk in tfle above-ent'tled rnatte" Dated: Novernber C4, 2013 Venetia H, Velazquez, Esq. Clerk of the Court SUPERIOR COURT OF THE VIRGIN ISLANDS APPELLATE DIVISION OF ST. CROIX LUCY ASCENCIO, v. Petitioner / Defendant, CARIB~~ HOME CENTER, INC., Defendant I Respondent CASE NO. SX-12-SM-459 PETITION FOR REVIEW OF A MAGISTRATE DECISION OPINION This malter is berore the Court on a petition ror review ofa decision of the Magistrate Court fi led by Petitioner Lucy Ascencio. Respondent Caribe Home Center. 1 nc .. a hardware store operating on St. Croix. tiled a complaint against Ascencio in the Small Claims Division of the Superior Court in October 2012 to recover approximately $4.500.00 Ascencio charged on a slore credit account in 2007. The Magistrate Court heard testimony from six witnesses over three hearings held in October and November 2012. after which the court found in favor of' Caribe Ilornr: Center and entered judgment. .. '\scencio tiled a timely petition for review of that decision. For the reasons stated below. the judgment of thl! Magistrate Court will be afJirmed in part and remanded in part. FACTUAL AND PROCEDUUAL BACKGROUND Lucy ;\scencio-Berrios was employed by Caribe Home Center, Inc. and applied for an employee credit account on October 27. 2006. (See PI. Ex. 12, Ascencio Credit Application. ') lIer application was approved the same day and she was authorized to charge up to $500 on her store crcd it account. Id. On the appl ication form, Ascencio agreed that the credit "account I The Exhibit List prcpan:d b:- the dcrK indicate, that the exhibits \VcrI.' not moved into evidencc. Because the sallie dCl(UmCnl, \\LTC attached tel CClribe HOlTIe Centcr's Complaint. the Cnurt will reference t:1C dllcumcnls b) c,hihit number. .lscen,.;o l' CI1J'ihe /10111" ('en/fl/', Inc SX-12-SI'v1-459 OPINION Page 2 01'11 is to be paid within 30 days, unless other arrangementrs] are made," ld Because Ascencio did not pay the full amount within thirty days, but instead carried a balance for over five years, Caribe Ilol11e Center filed a complaint against Ascencio in the Small Claims Division of the Superior Court to recover "judgment in the amount of $4,575,94 plus all court costs" related to the past dut: amount on her account. (Compl., filed Oct. 9. 2012,) The parties first appeared before the Magistrate Court on October 23. 2012,: Leticia Garcia appeared on behalf of Caribe Home Center and testified as to the balance remaining on Ascencio's ac\.:Ount. Jesus Garcia also appeared on behalf of Caribe Ilome Center and testified that he was hired by Ascencio to do repairs around her home. He also testified that Ascencio authorized him to purchase merchandise on her credit account from Caribe Home Center. Ascencio partially corroborated Jesus Garcia's testimony regarding the repair work he did, but she denied authorizing him to purchase goods on her store credit account. The Magistrate COLlrt continued the hearing to November 14, 2012 to allovv' both partks to call additional witnesses. At the second hearing, Magda Edwards appeared on behalf of Caribe Home Center and testijied thaI she attended a meeting with Ascencio, Jesus Garcia, and Felix Garcia, the store's general manager. about al.lowing Jesus Garcia to purchase merchandise on Ascencio's account. Ascencio called her ex-husband, Angel Luis Cadiz, who denied that Ascenciu gave JeSLlS Garcia permission to purchase merchandise on her store credit account. The Magistrate Court then continued the hearing to November 28,2012 to allow Caribe Home Center to call I'elix Garcia, At the third hearing. Felix Garcia testified that he is the general manager for Caribe Horne Center and knows Ascencio as a fanner employee of the store, (Hr'g Tr. 4: I 0-19, I\Ov, /\Ilr,uugh lh.: l1111gislralt: Cllurt hdJ tim:.: h(arings In this Illall~r. i\sceneiu Did) pur(has.:J a tralbcripl li',ml the final hearing hdJ Ull ]\;l)\cmhL'r :»( ?OI2. :,\ccurL1ingl). the (',)url Clbo rciil.:S llil the rcconi 01' prllcCl:dings prcpar~J hy the c Icrk, ,!scene'io \. ('(/j'iht' I lome ('''nlL'I', Illc SX-12-SM-459 OPINI()i\i I'agl' .lul'!S 28, 2017.,) Ascencio approached him at the store one day and asked if she could send Jesus Garcia to pick up merchandise Cor a job he was doing on her property. !d at 5:7-19. Jesus Garcia waS with Ascenc io when she appruached Felix Garcia. Jd. at 6: 13-14 & 7: 13-1 (l. 8ased on Ascencio's request. Felix Garcia instructed Edwards to aHow Jesus Garcia to obtain merchandise on Ascencio's account. !d at 6: 14-18. Hascd on a II 0 f the evidence presented, the Magistrate Court fCmnd that Ascencio had a store credit account with Caribe I lome Center, that Ascencio requested that Jesus Garcia be allO\ved to purchase goods on that credit accollnt, that he made charges to her account, and that the outstand ing balance totaled $4.575.94. See id. at I J :24-15: 8. The court entered judgment in favor orCaribe lIomc Center on November 28. 2012 for $4,575.94 plus $150.00 in court costs. Ascencio tiled a timely petition for review on November 30.2012. !\ copy of the transcript of the final hearing was tiled on March 26,2013. In an April 19,2013 Order, the Court determined that briefing was not required. DlSCUSSIOl\ Before a decision of the magistrate court is final, it must be reviewed and affirmed by a judge 0[' the Appellate Division of the Superior Court or the time to seek review in the Aprellate Division must expire. Bro!l'n \', Browl1, S, Ct. Civ. No. 2013-0020, 2013 \VL 4780946, *2 (Y.l. Sept. 6.2013) C'a decision rendered by the Magistrate Division of the Superior Court does not constitute a linal appealable order under section 32(a) until and Llllless it has been first appealed to, and considered by. the Appellate Division of the Superior Court."); Super. C1. R. 322.1 (c). For all cases within the magistrate court's original jurisdiction. slich as small claims cases, the magistrate court is the finder of Cact. In re ESlate or\'ma/f. 57 V.1. 416, 429 (V. I. 20 I I). New or additional evidence cannot be submitted to the Appellate Divisiun judge. Id.ln reviewing the magistrate court's decision. the Appellate ·Iscr!nci() I'. ('{/rih!! /lum!! Ct!i1It!!'. Inc SX-12-SM--i59 OPi!\]ON 1':.lg..:-inI'X Division judge must accept the t~tcts as fc)Und by the magistrate court unless the magistrale court's ·'t~lclual determination ... is completely devoid of minimum evidentiary support or .. . bears no rational relationship to the supportive evidentiary data." Id. at 430 {internal quotation marks and citations omitted). According to the record before the Court. Ascencio made purchases on her store credit account between October 2006 and September 2007. (See Pl. Ex. Il.) The total amollnt charged in 2007 was $6.317.28. (See Caribe Horne Ctr .. Inc .. 2007 Customer Profile. Accl. No. 12161\ (Nov. 5,2012).') A balance of $540.56 carried over from 2006 brought Ascencio's total indebtedness to $6,857.84 as of December 2007. See id. From 2007 through 2011. Ascencio paid Caribe \-Iome Center a total of $3,031.85 on her credit account: $2,326.85 in 2007. $275.00 in 2008, $145.00 in 2009, $140.00 in 2010. $l25.00 in 2011. and $20.00 in 2012. (See 2007-2012 Customer Profiles.) Those payments reduced the total amount Ascencio u\\cd Caribc Ilome Center down to $3,825.99. (.';;·ee p/.'s h. II.) The :'v1agistrate COllrt accepted Caribe (-lome Center's claim that Ascencio still owed $3,825.99 \vithout conducting an independent determination regarding the amount of goods Ascencio purchased on her credit account, hm .. much she later repaid, and whether the balance remaining was the same amount as Caribe Home Center claimed. In this instance, the record correlates v"jth the amount Caribe I-lome Center requested, so any error would be harmless. The record supports the Magistrate Court's findings that Ascencio still owes $3.825.99 to Caribe Home Center for goods purchased on her account in 2007. , In the eGun's lik <.Ire sh: "CuslomL:r Proliks" Caribe Ilomc Center prepared sho\\·ing purch:.lscs and payments mude on .'\so.:enciu· s credit ac..:uunt from 2007 through 2012 .. '\ Ithough the magistrate ..:ourt retCrred to thes!.: Jocuments at thl' ~U\ emoL:1" 2X. 2012 hl.'aring. Ill'ith..:r Ih..: transo.:ripl nO!" the records of proceeding inuicalo: \Ihether the.1 1\1.:1 ... · formull> 1T1l1lCU into L:liden..:..:. IS"e lIr'g 1'1'. 12:10-13:15. \:01. 2!l. 2()12.) Ill1\\<:I<:I'. i\:,ct:ncio did nllt srccililall.l challengl' the nl~JgistralL' court', d~l:isiun to admit an) cvid..:nc..:. but rathl'r the cuurt', IIIlUin[ls lll..:rall r~garuing thl' i,:1'iucnu: adlllilteJ. Sine..: these Customn l'rolilc~ \\er..: rCI'en:nccu b) tht: maglslral\.: court. the ('"un a,surm.:s th,lt the) \\I.:re pl'l)rn\) aumilt<:u into c\id~ncc. · I.In'l1c/u I'. ('(jJ'ihc' Ilofll'" (·":/lle,-. //1(' sX- I :!-SI\HS9 OPINION Page 5 lit'S On appeal, Ascencio argues that the Magistrate Court "overlooked or disregarded" the evidence she presented and that Caribe lIome Center failed to present sufficient evidence that she "granted permission to any person/persons to receive or purchase merchandise under Iherl account." (Pet. for Revic\\ J, filed Nov, 30, 2012,) Since Ascencio only disputes the pun.:hases madc by Jcsus Garcia. the Court finds no dispute regarding the three invoices ('aribe 110l11e Center submitlcd--totaling $2,378,52 (see Pl.'s Exs, 1-3)-~thal bear Ascencio\ signature. Of the remaining invokes. however, Ascencio docs dispute that she authori/cd Jesus (Jarcia to obtain goods on her account. Seven invoices bear Jesus Carcia's signature, totaling $1.483.77. (5;ee Pl.'s Exs. 4-10,) Although Ascencio argues that the evidence before the Magistrate Court was insufficient to find that she authorized Jesus Garcia to purchase goods on her account and that the Magistrate Court disregarded her evidence, her arguments lack merit. Three witnesses---Magda Edwards, Jesus Garcia, and Felix Garcia--·testified that they were present with Ascencio at Caribe Ilome Center when she requested that Jesus Garcia be nllowed In purchnse goods on her store credit account. The Magistrate COllrt tlllmd their testimony credible emd concluded lhnt Caribe Home Center presented sufficient evidence for the courl to lind in its favor. Although Ascencio and her ex-husband Cadiz disputed the testimony of Caribe Ilome Center's \.vitnesscs, that alone does not render the Mngistrate Court's lindings clearly erroneous. Moreover, just because the Magistrate Court found Caribe J lome Cenler's evidence more credible than Ascencio's evidence, that does not mean that the court overlooked or disn:gardcd her evidem:e. Although there \vere contlicts in the evidence, on appeal this COLlrt cannot resolve sllch conflicts, vl'eigh the evidence. or assess \vitne~s credibility, The Magistrale COllrt, as the finder or fact, properly made these determinations, Accord Sntilh v. People, 51 V.l. 3%, 40 I (V.1. 2009). · Iscenc'if! \' ('ul'lhe I {ollie (·el1it:/,. Il1c SX-12-S\lI-~5l) OPI~ION Page h ur X [~ased on the deferential standard uf review the Court must apply, the Magistral>: Court's (; redibi lity determ inations are not (; leady erroneous and. a 1though the court did not independently determine whether the remaining balance on Ascencio's account correlated with what ('aribe Ilome Center claimed, that amount is supported by the record before the COUI1. Therefore. the judgment \vil1 be affirmed as to the halance remaining on Ascencio's store credit account. As to the alllount assessed in service charges, however, the Court is unable to determine whether that amount is proper because the Magistrate Court did not ma"'~ any findings. Therc!()f(:. this matter must be remanded for additional tindings. See, e.g. Ric((ra v. Pcople. 57 V.1. 659. 668 (V. I. 2012) (remanding where lack of find ings renders appellate review impossible) ("meaningful reviev, is not possible where the trial court bils to sufficiently explain its reasoning."'). Beginning in August 2011 and continuing through August 2012, Caribe Home Center assessed Ascencio's credit account a monthly service charge, The record does not explain \vhy Ascencio's account incurred a "service charge"' only between 2011 and 2012 whereas in 2007, 2008, 2009, and 2010 no charges were assessed. Although the credit application Ascencio filed out noted that she would have to repay any amount charged within thirty days unless other arrangements were mddc, (see PI. 's Ex. II), \vhcther such arrangements were made with ('aribe 1I0l11e Center was not determined by the Magistrate Court. The credit application itself'is silent regarding incurring fees or service charges on amounts unpaid after thirl) days. In addition to nh: Caribe J lome Center only assessed service charges in 20 II and 2012. and 1110re importantly. hmv the store arrived at the amount assessed is also unclear. The amounts assessed in service charges between August 20 II and August 2012 range from $57.39 to $58.36. (St'e 201/ Customer Profile: 2012 Customer Profile.) [n total. the monthly /scencio \'. Cunhi! II()mi! Cf!I1Ii!r. /lle SX-12-SM-459 OI}IN!ON Pag~ 7 ur X serv icc charges for th is one-year period come to $749.95. 4 (Set:' PI.' sEx. 1 I.) With the service charges added to the outstanding balance Ascencio owed ror cunsumer goods purchased on her account. the total aillount increases fro111 $3.nS.99 to $4,575.94, the amuul1t the \1agistrall: Court a\\ard to Caribe llome Center. (lgmt. entered Nov. 28. 20 J 2.) Even if the terms or the store credit account. or later arrangements between the parties, did provide tor assessing a monthly service charge on any unpaid balance beyond the thirty-day period provided in the agreement. the amount assessed could not exceed the statutory maximum provided in II V.LC. ~ 9SI. Section 951 oCtitk II of the Virgin Islands Code caps the rate of interest that can be assessed on "all monies which have become due" or on "money due ... where there is a contract and no rate is speci fied" at n inc percent annua Ily. I I V. I.e. S 95 I (a)( I ),( 4). Section 952 l'urthcr d ireels that "l n 10 person shall ... rcce ivc ... any greater sum ... for the lise of money" than the nine percent provided by section 951 (a). II V.I.e. § 952. In Foreign COfllmace v. '()fill. 789 F.2d 221,224 (3d Cir. 1(86), the United States Court of Appeals for the Third Circuit concluded that a monthly service charge on monies due constituted intcn:st that could nut e",ceed the cap sct by sectiun 9S1(a). Here, in August 2011 the first month that Caribe Home Center assessed a service charge--Ascencio's account balance before the service charge was $3.890.99. (Set:' 20 II Customer Profile.) A service charge \vas then assessed at $58.36. $58.36 is approximately 1.5% of $3,890.99, the unpaid balance Ascencio owed as or August 20 J I. /\s the Third Circuit observed, a 1.5% monthly service charge would be rough I: cqu ivalent to an 18% annual interest rate-well beyond the statutory maximum. Foreign ('ommern!. 7R9 F.2d at 222 n.l. \ .. \ccorJing. to thL' )()11 Custllmer I'wllk. thl' last ,-,:1'\ icc charge Caribc 110m!: (\:nlo:r ass!:ssl'd ttl Asccncio's account \\~S in <",cpl\:lllhcr 20! 2. llm\ n IT, that samc ilHIlllh. ('aribl.' Scrvic!: Cenler l'rcdilcd Aseencio's aCCliunt • ,;tllle amuunt d~ the SU\ ICC Llwr)1,~'. I.\ee gellL'I'(!11r 1() 12 Customer I'nili k.) !scel1cio \' ('({nne Ilollie ('elller, /I1C SX-/2-Srvl-459 OPINION IJage 1\ uf X "While Superior Court Rule 64 requires the Small Claims Division to do substantial justice between the partks. it must do so according to the rules of substantive law" Jfill I/w'hour ('one/ominiutll ()l\ners Ass 'n l', /vtarsholf. 53 V ,I. 581 (V, L 20 I 0) (internal quotation marks omitted). Ikcallsc the amount assessed may violate the Virgin Islands usury lavvs, this matter must be remanded to the Magistrate Division for the limited purpose of determining \vhether the service charges Caribe J lome Center assessed complies with II V,I.e. 9951. CONCLUSION For the reasons stated above, Ascencio has not shown that the Magistrate Court's lindings arc clearly erroneoLis as to the unpaid balance ror goods pun.:hased on her store credit accOlln!-· both by herself and by Jeslls Garcia, Therefore. the November 28. 2012 Judgment uf the Magistrate Court is affirmed as to the $3.825.99 Ascencio owed to Caribe Ilomc Center I<x purchas;;:s made in 2007 as well as $150.00 a\varded in court cost~, Ilowever. this matter must be remanded to the r.."lagistrate Court to determine whether the $749.95 Caribe Ilome Center assessed in monthly service charges complies with II V.I.e. S 951. ,?- DONE and so OllDERED this o{f day of October, 2013. ATTEST: Venetia Ilarvcy- V elazql1el. Esq. Clerk of the COlirt czI~~ HAROLD W.L. WILLOCKS Judge of the Superior Court