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FOR PUBLICATION IN THE SUPREME COURT OF THE VIRGIN ISLANDS JOHN ENRIETTO and MARK FARRELL, S.Ct. Civ. No. 2007/058 Appellants, Re: Super.Ct. Civ. No. 534/2004 Vv. ROGERS TOWNSEND & THOMAS PC, RICHARD SCOTT and JULIUS VAN DE VOORDE, Appellees/ Intervenors. le | L NOTICE OF ENTRY OF JUDGMENT/ORDER TO: Justices of the Supreme Court of the Virgin Islands Judges of the Superior Court of the Virgin Islands Joel H. Holt, Esq. Derek M. Hodge, Esq. Paul M. Platte, Esq. Venetia Harvey Velazquez, Esq., Clerk of the Supreme Court Denise D. Abramsen, Clerk of the Superior Court Supreme Court Law Clerks Kevin A. Williams, Sr., Director, Information Technology Janet Lloyd, Librarian Jacqueline Reovan Janiese Kelly Arlene Sutton Please take notice that on August 29, 2007, a PER CURIAM MEMORANDUM OPINION and ORDER OF THE COURT dated August 29, 2007, was entered by the Clerk in the above-entitled matter. Dated: August 29, 2007 VENETIA H. VELAZQUEZ, ESQ. Clerk of Court (_ Peputy Clerk Designee CO:ZINd 62 Si¥ L002 LYNOD SWIYdNS For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS JOHN ENRIETTO and MARK FARRELL, ) ) S.Ct. Civ. No. 2007/058 Appellants, ) Re: Super.Ct. Civ. No. 534/2004 ) ROGERS TOWNSEND & THOMAS PC, ) = RICHARD SCOTT and ) nm JULIUS VAN DE VOORDE, ) © ) = Appellees/Intervenors. ) S ) fom) Go On Appeal from the Superior Court of the Virgin Islands Considered: June 6, 2007 Filed August 29, 2007 BEFORE: Maria M. Cabret, Associate Justice; Ive Arlington Swan, Associate Justice; Verne A. Hodge, Justice Pro Tem. APPEARANCES: Joel H. Holt, Esq. St. Croix, USV1 Attorney for Appellants Derek M. Hodge, Esq. Mackay & Hodge, LLC St. Thomas, USVI Paul M. Platte, Esq. St. Thomas, USVI Attorneys for Appellees ORDER OF THE COURT Per Curiam AND NOW, consistent with the reasons outlined in a Memorandum Opinion of even date, it is hereby Lynod aWauANS Enreitto v. Rogers Townsend & Th: P.C. S. Ct. Civ. App. 2007/058 Order ORDERED that the this appeal is DISMISSED for lack of jurisdiction. It is further ORDERED that Appellants’ Motion to Expedite Appeal and/or Stay the Proceedings Below is DENIED. SO ORDERED this 29th day of August 2007. ATTEST: VENETIA HARVEY VELAZQUEZ Clerk of the Court Copies with accompanying Opinion to: Justices of the Supreme Court Panel Judges of the Superior Court Joel H. Holt, Esq. Derek M. Hodge, Esq. Paul M. Platte, Esq. Venetia Harvey Valazquez, Esq., Clerk of the Supreme Court Denise D. Abramsen, Clerk of the Superior Court Supreme Court Law Clerks Kevin A. Williams, Sr., Director, Information Technology Janet Lloyd, Librarian Jacqueline Reovan Janiese Kelly Arlene Sutton B24 OTe > JE COPY CERTIFIED ATRUEC j t 29 2-00 Date: Xx a8 7) Z NETIA H. VELAZQUE he Clerk of the Court BY: sae puly Cc lerk , For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS JOHN ENRIETTO and MARK FARRELL, S.Ct. Civ. No. 2007/058 Appellants, Re: Super.Ct. Civ. No. 534/2004 YY. ROGERS TOWNSEND & THOMAS PC, RICHARD SCOTT and JULIUS VAN DE VOORDE,! Appellees/ Intervenors. "me me! Te” See me eee ee ee ee hee Spe he On Appeal from the Superior Court of the Virgin Islands Considered: June 6, 2007 Filed: August 29, 2007 BEFORE: Maria M. Cabret, Associate Justice; Ive Arlington Swan, Associate Justice; Verne A. Hodge, Justice Pro Tem. APPEARANCES: Joel H. Holt, Esq. St. Croix, USVI Attorney for Appellants Derek M. Hodge, Esq. Mackay & Hodge, LLC St. Thomas, USVI] " In the trial court, where the civil action involves numerous plaintiffs, defendants and intervenors, this case was captioned as Board of Directors Bluebeard’s Castle Villas HI Condominium Association, et al. v. Fairfield Resorts, Inc. et al. This appeal was orginally captioned in the same manner as the civil proceedings in the trial court. Rule 5(f) of the Virgin Islands Supreme Court Rules provides that the case caption should list the appellants and appellees with a reference to the parties’ titles in the lower court action. Inasmuch as it is clear that the appellants and appellees are not identical to the plaintiffs and defendants below, respectively, the caption has been corrected to identify the proper appellants and appellees. The Clerk of the Court is directed to amend the caption in the manner set forth above. CO:iNd 62 INY L002 LYNOD JW3AYdNS Enrietto v. Rogers Townsend & Thy: PC. * S.CT. Civ. App. No. 207-058 Memorandum Opinion Paul M. Platte, Esq. St. Thomas, USVI Attorneys for Appellees MEMORANDUM OPINION Per Curiam The board of directors of Bluebeard’s Castle Villas II] Condominium Association (“Villas IIT’) sued the condominium developers, Equivest St. Thomas, Inc. (““Equivest”) and other defendants, alleging, inter alia, that the defendants misappropriated condominium assessments and failed to adequately maintain the condominium. (Joint Appendix “J.A.” at 640-682.) The complaint seeks damages for alleged violations of the Virgin Islands Criminally Influenced and Corrupt Organizations Act,’ fraud, conversion, breach of fiduciary duty, breach of contract and the imposition of equitable liens and a constructive trust on insurance proceeds. (J.A. at 655-678.) Two directors on the Villas II] board, Mark Farrel] and John Ennetto, appellants herein, were appointed to serve on the board by Equivest pursuant to powers of appointment Equivest retained under the condominium bylaws. (J.A. at 32.) The remaining directors,’ Richard Scott and Julius Van De Voorde, appellees herein,’ moved the trial court to disqualify Farrell and Enrietto from participating in litigation-related decisions by * The Virgin Islands Criminally Influenced and Corrupt Organizations Act is codified at V.I. CODE ANN. tit. 14, §§ 600-614. 3 On June 3, 2005, the tnal court disqualified three other board members from participating in litigation decisions because they were employees of Equivest and, therefore, had a conflict of interest. That decision is on appeal to the Appellate Division of the District Court of the Virgin Islands, which, prior to the creation of the Supreme Court of the Virgin Islands, had jurisdiction over appeals from the Superior Court of the Virgin Islands. “ The law firm of Rogers Townsend & Thomas, P.C., is also desi gnated by Appellees as a party to this appeal, though it is unclear why the law firm is a party. Enrietto v. Rogers Townsend & rr. P.C. ry S.CT. Civ. App. No. 207-058 Memorandum Opinion the board because they have a conflict of interest in controlling the litigation against Equivest. Appellees argued that, because Equivest appointed Farrell and Enrietto, those two board members essentially served at the pleasuraEquivest and were, therefore, conflicted in making litigation decisions hostile to Equivest. (J.A. at 120-127.) The trial court granted the motion on February 27, 2007. (J.A. at 29.) On March 8, 2007, Farrell and Enrietto moved for reconsideration of the court’s order. (J.A. at 298-304.) The trial court denied the motion for reconsideration by order entered on April 17, 2007. (J.A. at 36-44.) Farrell and Enrietto filed a notice of appeal on Apmil 18, 2007. (J.A. at 1-3.) Two motions are pending before this Court. First, Appellants filed a Motion to Expedite Appeal and/or Stay the Proceedings Below. In support of their motion, Appellants argue that appellate consideration of whether they can participate in litigation decisions must be expedited or the tnal court’s decision should be stayed until the appeal is decided because litigation in the trial court is continuing while this appeal is pending. In the second motion, Appellees have moved to dismiss the appeal on the ground that this Court lacks jurisdiction to consider the trial court’s order disqualifying Farrell and Enrietto from participating in board decisions concerning the litigation. In support of their motion, Appellees assert that the order at issue is interlocutory and that an immediate appeal is not available to challenge the order. Appellees further argue that the appeal should be dismissed because the notice of appeal was not timely filed. In response to the Motion to Dismiss the Appeal, Appellants assert that we have jurisdiction to consider the matter because: (1) the trial court’s order is a directly appealable interlocutory order imposing an injunction; (2) the trial court’s order is subject to immediate appeal under the collateral order doctrine; and (3) the notice of appeal was timely to appeal the Enrietto v. Rogers Townsend & Th: P.C. & S.CT. Civ. App. No. 207-058 Memorandum Opinion htigation are not injunctions); Hershey Foods, 945 F.2d at 1278 (“We think it better . . . to continue to read § 1292(a)(1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by the complaint . . . and not as including restraints or directions in orders concerning the conduct of parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.’”) (quoting Int'l Prods. Corp. v. Koons, 325 F.2d 403, 406 (2d Cir.1963)); see also N.Y. v. U.S. Metals Ref. Co., 771 F.2d 796, 801 (3d Cir. 1985) (same). In the instant case, the order plainly relates only to the conduct or progress of the litigation. Again, the court’s order merely prohibits Farrell and Enrietto from participating in litigation decisions by the board. This directive, even though cast in injunctive terms, is totally unrelated to any substantive relief sought in the complaint. This Court does not believe the Legislature intended such an order to be immediately appealable under 4 V.I.C. § 33(b)(1). Rather, in light of the rationale and strong policy considerations underlying the final judgment rule, as embodied in the Virgin Islands under 4 V.1.C. § 32, we will restrict application of 4 V.LC. § 33(b)(1) to that narrow class of cases that squarely meet the three-part test developed by the Third Circuit in Cohen v. Bd. of Trs. of Univ. of Med. & Dentistry, 867 F.2d 1455, 1465 n.9 (3d Cir.1989). And, we will apply the test criteria in a manner that does not violate the strong legislative policy against piecemeal appeals. Inasmuch as the order at issue in this case does not meet the criteria developed by the Third Circuit in Cohen, it is not an injunction qualified for immediate review under 4 V.LC. § 33(b) (1). Il. The Collateral Order Exception to the Final Judgment Rule. Another exception to the final judgment rule relied on by Appellants is the collateral order doctrine, enunciated by the United States Supreme Court in Cohen v. Beneficial Indus. Enrietto v. Rogers Townsend & Th. PC. é S.CT. Civ. App. No. 207-058 Memorandum Opinion Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under the collateral order doctrine, the Supreme Court “recognized an exception to the final judgment rule for a ‘small class’ of prejudgment orders which ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, [and are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Richardson-Merrell, 472 U.S. at 430, 105 S.Ct. at 2761 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). Like the rule allowing for immediate appeal of interlocutory injunctive orders, the collateral order doctrine is a “‘narrow exception” to the final judgment rule. Richardson-Merrell, 472 U.S. at 430, 105 S.Ct. at 2761 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981)). “To fall within the exception, an order must at a minimum satisfy three conditions .. . .” Richardson-Merrell, 472 U.S. at 431, 105 S.Ct. at 2761. First, it “must conclusively determine the disputed question”; second, it must “‘resolve an important issue completely separate from the merits of the action’””’; and third, it must ““‘be effectively 37> unreviewable on appeal from a final judgment.’” /d. (quoting Coopers & Lybrand vy. Livesay, 437 US. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). These three conditions are to be stringently applied in light of the Supreme Court’s repeated admonitions emphasizing 4 the doctrine's “‘modest scope.” — Pressman-Gutman, 459 F.3d at 396 (quoting Will v. Hallock, 546 U.S. 345, 126 S.Ct. 952, 957, 163 L.Ed.2d 836 (2006)), see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 1996, 128 L.Ed.2d 842 (1994) (“[W]e have ... repeatedly stressed that the ‘narrow’ exception should stay that way and never be allowed to swallow the general rule ... that a party is entitled to a single appeal, to be deferred until fina] judgment has been entered].]’”) (internal citation omitted). Furthermore, a Enrietto v. Rogers Townsend & Th@i§s, P.C. @ S.CT. Civ. App. No. 207-058 Memorandum Opinion failure to meet even one of the three factors renders the doctrine inapplicable as a basis for appeal, no matter how compelling the other factors may be. Virgin Islands v. Hodge, 359 F.3d 312, 320 (3d Cir. 2004). In this case, the order disqualifying Farrell and Enrietto from participating in litigation decisions can be effectively reviewed on appeal from a final judgment. The United States Supreme Court has ruled that an order disqualifying conflicted counsel is not appealable under the collateral order doctrine, because among other reasons, such orders can be effectively reviewed on appeal. Richardson-Merrell, 472 U.S. at 438, 105 S.Ct. at 2764-2765. We believe that the order at issue in this case is similar to an order disqualifying counsel due to a conflict of interest, and Appellants have advanced no argument to the contrary. See Pressman-Gutman, 459 F.3d at 397. Moreover, the Third Circuit has ruled that a district court’s interlocutory order disqualifying pension plan administrators from making litigation decisions due to a conflict of interest, and appointing a substitute plan administrator, is not immediately appealable under the collateral order doctrine. | Pressman-Gutman, 459 F.3d at 397. We can discern no practical difference between the order at issue here and the one under review in Pressman-Gutman. Both disqualification orders were directed at individuals who were responsible for administering the affairs of the plaintiff entity. See id. at 388. But, due to a conflict of interest arising out of the litigation, the administrators in both cases were disqualified by the trial courts from making decisions related to the litigation. See id. at 389-390. In both cases, the aggrieved party sought to protect the right to make litigation decisions by appealing the trial court’s decision. See id. at 389. In Pressman- Gutman, the court concluded that the plaintiff would “be able to appeal should it suffer an Enrietto v. Rogers Townsend & TH: PC. a S.CT. Civ. App. No. 207-058 Memorandum Opinion unsatisfactory judgment with a substitute Plan representative.” Jd. at 397. Likewise, in our case the defendants will be able to appeal should they suffer an unsatisfactory judgment with the reconstituted board controlling the litigation. As in Pressman- Guttman, the aggrieved parties in our case will not irretrievably lose a protected right by delaying appeal of the trial court’s decision until after final judgment. See id. (comparing In re Ford Motor Co., 110 F.3d 954, 963 (1997), permitting immediate appeal from an order allowing discovery of documents claimed to be protected by the attorney-client privilege because a delay in allowing the appeal would have permitted the very disclosure that the appellant claimed applicable rules precluded). Because the appellants in this case will have an opportunity to appeal the trial court’s decision upon final disposition of the litigation, the order at issue does not fall within the collateral order exception to the final judgment rule. The right of Farrell and Enrietto to participate in litigation decisions will not be irretrievably lost by delaying review until after final judgment. If, upon final review, it is determined that the trial court erred in disqualifying the appellants from participating in litigation decisions and that a new trial is merited, the rights appellants seek to preserve in this appeal may be appropriately restored. Accordingly, the order at issue, like the one in Pressman- Gutman, does not fit within the modest scope of the collateral order doctrine, and this Court does not have jurisdiction over the appeal by virtue of the doctrine. Finally, inasmuch as we have concluded that we do not have jurisdiction to review the trial court’s order, it is unnecessary to reach the assertions by Villas II] that the appeal should be dismissed because the notice of appeal was untimely filed. For the Enrietio v. Rogers Townsend & TI) i: PC. 6 S.CT. Civ. App. No. 207-058 Memorandum Opinion same reason, we will deny Appellants’ Motion to Expedite Appeal and/or Stay the Proceedings Below. IV. Conclusion. Because the order appealed from is not a final judgment subject to review under 4 V.I.C. § 32, and does not qualify as an exception to the final judgment rule, this Court does not have jurisdiction to hear the appeal. The order cannot be characterized as an interlocutory order granting injunctive relief subject to immediate review under 4 V.IC. § 33(b)(1), and does not qualify for immediate review under the collateral order doctrine recognized by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 US. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). For these reasons, we will dismiss the appeal for want of jurisdiction. DATED this 29th day of August 2007. ATTEST: VENETIA HARVEY VELAZQUEZ Clerk of the Court Deputy Clerk CERTIFIED A TRUE COPY 24 2.00.) Date: Q dh faba VENETIA H. VELAZQUEZ Clerk of.the Court BY: ‘i Deputy Clerk |