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TT IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN IRVIN A. SEWER Plaintiff ) CASE NO. ST-00-CV-0000473 ACTION FOR: TRESPASS VS CHARLES A. HAMILTON CHARLES A. HAMILTON AND ASSOCIATES Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION & (2) ORDERS TO ARCHIE JENNINGS, ESQ. IRVIN A. SEWER, PRO SE LYLE A. BAPTISTE, PRO SE JUDGES & MAGISTRATES OF THE SUPERIOR COURT LAW BOOK, IT, CLERK OF THE COURT Please take notice that on July 06, 2011 a(n) MEMORANDUM OPINION & (2) ORDERS dated July 05, 2011 was entered by the Clerk in the above-entitled matter. Dated: July 06, 2011 Venetia a ZOUE \ Esq Cl K cS, y SS CAMEIL A. CLARKE COURT CLERK | SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN IRVIN A. SEWER and LYLE A. BATTISTE, ) ) Plaintiffs, ) ) vs. ) CASE NO. ST-00-CV-473 ) CHARLES A. HAMILTON and CHARLES A. ) HAMILTON AND ASSOCIATES, ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court are Defendants’ motion for summary judgment! and Plaintiff Lyle Battiste’s motion for summary judgment.’ For the following reasons, both motions will be denied. FACTUAL AND PROCEDURAL HISTORY On August 11, 2000, Plaintiffs filed a pro se Complaint alleging trespass, professional negligence, and malpractice on the part of Defendants. Plaintiffs alleged the following facts: (1) they are co-owners of a two acre property known as 6ab Hansen Bay A, East End Quarter, St. John, USVI; (2) between 1979 and 1982, Defendants entered onto Plaintiffs’ land and conducted surveys, which were subsequently recorded; (3) in the surveys, Defendants located Parcel 6e partially or wholly within the bounds of Parcel 6ab; and (4) on or about May 19, 1990, Violet Sewer, sister to Plaintiff Irvin Sewer, wrote a letter to Defendants requesting that Defendants correct surveying errors concerning the ' Defendants filed their motion on April 26, 2010, and Plaintiff Irvin Sewer filed an opposition on May 27, 2010. ? Battiste filed his motion on June 14, 2010. Sewer et al. v. Hamilton, ST-00-CV-473 Memorandum Opinion, July 1, 2011 boundaries of Parcel 6e. On September 12, 2000, Defendants filed an Answer asserting that Plaintiffs were estopped from bringing their claims due to the running of the statutes of limitations on those claims. ANALYSIS Rule 56 of the Federal Rules of Civil Procedure, made applicable to the Virgin Islands Superior Court through Rule 7 of the Rules of the Superior Court, provides that summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering a motion for summary judgment, a court must “draw ... all reasonable inferences from the underlying facts in the light most favorable to the non-moving party.” Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000). An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with regard to that issue. Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). a) Defendants’ motion for summary judgment. Foremost, Defendants assert that this action should be dismissed based on the doctrines of res judicata and collateral estoppel. The doctrine of res judicata, or claim preclusion, “bars repetitious suits involving the same cause of action once a court of competent jurisdiction has entered a final judgment on the merits.” U.S. v. Tohono O'Odham Nation, 131 S.Ct. 1723, 1730 (2011). See also Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990) (“res judicata gives dispositive effect to a prior judgment if the particular issue, albeit not litigated in the prior action, could have been Sewer et al. v. Hamilton, ST-00-CV-473 Memorandum Opinion, July 1, 2011 raised”). Collateral estoppel, or issue preclusion, “bars relitigation only of an issue identical to that adjudicated in the prior action.” Jd. Generally, however, a person: who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered (a) cannot directly or collaterally attack the judgment, and (b) is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action, Restatement of Judgments § 93 (1941). See also Selkridge v. United of Omaha Life Ins. Co., 237 F.Supp.2d 600, 604 (D.V.I. 2002). In Netsky v. Violet Sewer et al., the District Court of the Virgin Islands determined that Defendant Hamilton had recorded surveys that correctly established the boundaries lines between Parcel 6e and Parcel 6ab. 205 F. Supp.2d 443, 456, 457 (D.V.L 2002). The Court concluded that: no genuine issue of material fact exist[ed] as to the validity and accuracy of Hamilton Surveys of Parcel 6E. Hamilton surveyed Parcel 6E in accordance with established surveying practices. He properly drew conclusions from available historical documents, informed testimony of the property owners, and his own investigative fieldwork. Jd. Notwithstanding, Netsky was an action to determine color of title, while the claims in this action sound in tort. Moreover, Defendants were not parties, or in privity with a party, in Netsky. See Restatement of Judgments § 93, Comment d, “collateral estoppel” (“if in an action it is found ... that one of the parties was or was not guilty of ... negligence ... the finding has no effect upon persons who were not parties or privies to the judgment”). As a result, the doctrines of res judicata and collateral estoppel are inapplicable to this case. Defendants also make the following statement: “[t]herefore besides the issue of being beyond the two year statute of limitations for negligence as per Title 5 V.LC. § Sewer et al. v. Hamilton, ST-00-CV-473 Memorandum Opinion, July 1, 2011 31(5)(A)...” As written, the statement is not a complete sentence and is insufficient to be construed as a valid legal argument. As a result, Defendants’ motion will be denied. b) Plaintiff Battiste’s motion for summary judgment. In his motion, Plaintiff Battiste raises several constitutional arguments that challenge “prior Superior Court cases, Civil No. 99-237, Civil No. 13-1979, and 02- 2696,” as well as a “District Courts (sic) Ruling.” Plaintiff may not use this action as a vehicle to appeal previous court rulings. See El-Hewie v. Supreme Court of New Jersey, 2011 WL 1899298, at *2 (D.N.J. 2011) (“{t]o the extent [plaintiff's] allegations reflect her disagreement with the resolution of her previous cases, the proper vehicle for raising such a challenge is to file an appeal in those cases, not bring a new action”). As a result, Plaintiff Battiste’s motion for summary judgment will be denied. rder consistent with this Opinion shall "OO ty Son 1 ae mee HON. MICHAEL C. DUNSTON ST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT erk of Court / / ; | 4 OF THE VIRGIN ISLANDS ‘1 Lori Boynes-Tygon CERTIFIED A [RUE COPY SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN IRVIN A. SEWER and LYLE A. BATTISTE, ) ) Plaintiffs, ) ) VS. ) CASE NO. ST-00-CV-473 CHARLES A. HAMILTON and CHARLES A. HAMILTON AND ASSOCIATES, Defendants. ORDER Upon consideration of the premises, it is hereby ORDERED that Defendants’ motion for summary judgment is DENIED; and it is ORDERED that Plaintiff Battiste’s motion for summary judgment is DENIED > . and it is ORDERED that a copy of this Order shall be directed to Plaintiff Irvin Sewer, Plaintiff Lyle Battiste, and to Defendants’ counsel of record. Dated: July S201 ee ones HON. MICHAEL C. DUNSTON ATT) JUDGE OF THE SUPERIOR COURT : Venetia H. Velazquez, Esq. f Court / Lt A i Boynes-Tys n C Clerk Supervisor A le1cb/ CERTIFIED A TRUE Cor Dete O) Xo C Vene eI Esa ES Clet y) By Court Clerk IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN IRVIN A. SEWER and LYLE A. BATTISTE, CASE NO. ST-00-CV-0000473 ) ) Plaintiffs, ) ) ACTION FOR: TRESSPASS, vs. ) PROFESSIONAL NEGLIGENCE ) AND MALPRACTICE CHARLES A. HAMILTON and CHARLES ) HAMILTON AND ASSOCIATES, ) ) Defendants. ) JURY TRIAL DEMANDED ) ORDER IT IS HEREBY ORDERED that this matter is scheduled for FINAL PRETRIAL CONFERENCE on Monday, August 22, 2011, at 3:00 p.m., in Courtroom IV: and it is ORDERED that this matter is scheduled for JURY SELECTION on Friday, September 16, 2011, at 9:00 a.m., in Courtroom IV; and it is further ORDERED that copies of this Order shall be served on the Plaintiffs, pro se, at the address provided to the Court and that a copy thereof shall be directed to Archie Jennings, Esq. DATED: July 5, 2011 a ——__. MICHAEL C-DUNSTON ATTE Judge of the Superior Court VEN H. VELAZQUEZ, ESQ. of the Virgin Islands Clerk/of the Court eld Lori Boynes-Tyson, Court Clerk/ Supervisor OF} Dboisof