El P. Gutierrez, Jr., Individually and as Co-Trustee of the Trust Agreement of Ignacia M. Gutierrez v. Patricia M. Worede, Individually, Patricia M. Worede in her Capacity as Co-Trustee of the Trust Agreement of Ignacia M. Gutierrez

• Court: Superior Court of The Virgin Islands
• Decided: August 22, 2024
• Docket: SX-2024-CV-237
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

MANUEL P GUTIERREZ JR INDIVIDUALLY AND AS CO TRUSTEE OF THE TRUST AGREMENT 0F IGNACIA M GUTIERREZ DATED OCTOBER31 2001 AS AMENDED JULY 27 2007 IGNACIA I GUTIERREZ PATRICIA M WOREDE AND MANUELP GUTIERREZ JR CO TRUSTEES AND AS CO TRUSTEE OF THE TRUST AGREEMENT OF MANUEL P GUTIERREZ DATED OCTOBER 31 2001 AS AMENDED JULY 27 2007 MANUELP GUTIERREZ IGNACIA M GUTIERREZ PATRICIAM SK 2024 CV 00237 WOREDE AND MANUEL P GUTIERREZ JR C0 TRUSTEES 2024 VI SUPER 31U Plaintiff, V

PATRICIA M WOREDE INDIVIDUALLY PATRICIA M WOREDE IN HER CAPACITY AS CO TRUSTEE OF THE TRUST AGREEMENT OF IGNACIA M GUTIERREZ DATED OCTOBER 31 2001 AS AMENDED JULY 27 2007 IGNACIAM GUTIERREZ PATRICIAM WOREDE AND MANUEL P GUTIERREZ JR CO TRUSTEE PATRICIA M WOREDE IN HER CAPACITY AS CO TRUSTEE OF THE AGREEMENT OF MANUEL P GUTIERREZ DATED OCTOBER 31 2001 AS AMENDED JULY 27 2007 MANUEL P GUTTIERREZ [GANACIA M GUTIERREZ PATRICIA M WOREDE AND MANUEL P GUTIERREZ JR CO TRUSTEES ANA M WITTMANN AND MARIAI VALLS Defendants

AMENDED MEMORANDUM OPINION

1| 1 THIS MATTER is before the Court on a Motion for Temporary Restraining Order and

Preliminary Injunction (‘Motion ) filed by Plaintiff Manuel P Gutierrez Jr (“Gutierrez’ or

“Plaintifi‘ ) pursuant to V1 R Civ P 65

1|2 Accompanying the Motion are (l) the Trust Agreement for Ignacia M Gutierrez dated

October 31, 2001 ( I G Trust ), (2) the Trust Agreement for Manuel P Gutierrez dated October Manuel P. Gutierrez Jr v Patrzcza Worede et a1 2024 VI SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 2 of 13

31 2001 ( M G Trust ) (3) FirstAmendment t0 the July 27 2007 TrustAgreement of lgnacia

M Gutierrez dated October 3], 200] ( First Amendment ); (4) The Second Amendment to the

[gnacia M Gutierrez Living Trust (“Second Amendment ’), (5) Banco Popular Checking Account

statement for the period of May 10, 2023, to June 8, 2023, for the Ignacia M Guttierez and Manual

P Gutierrez Trust; and (6) Merrill account statements Plaintiff also filed a Verified Complaint in

which he requested a temporary restraining order (“TRO ’), preliminary and permanent injunctive

relief, and declaratory relief Plaintiff s Verified Complaint claims breach of trust intentional/

negligent infliction of emotional distress, civil conspiracy, requests to remove Worede as the

trustee, punitive damages, and accounting Additionally, a Certification of Carl A Beckstedt IlI

Re Notice was filed with the Motion, certifying the efforts undertaken to serve the Defendants

concurrent with the filing of the Verified Complaint and Plaintiffs’ motion for Temporary

Restraining Order and Preliminary Injunction

1|3 The Court will issue a TRO on its finding that the motion, Verified Complaint and

supporting documents establish that ‘ immediate and irreparable injury, loss, or damage” will result

should Defendant Worede be permitted to continue acting as a trustee of the I G Trust and the

M G Trust, singly and in concert with the Defendants, between now and the date of the hearing

for preliminary injunction

l FACTUAL BACKGROUND

114 The Verified Complaint I G Trust the M G Trust the First Amendment to the Trust

Agreement of Ignacia M Gutierrez, and Second Amendment to the Ignacia M Gutierrez Living

Trust establish the following facts Manuel P. Gutierrez Jr. v Pamela Worede et a1 2024 VI SUPER 31U SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 3 of 13

15 Manuel P Gutierrez, Ir , Patrica M Worede( Worede ), Ana Wittmann (“Wittmann ’),

and Maria I Valls (“Valls ) are children of Ignacia M Gutierrez (“l G ’) and Manuel P Gutierrez

(“M G ) Camp] at 119 Gutierrez and Worede are the co trustees of the I G Trust and the M G

Trust On July 27, 2007, the I G Trust and M G Trust were amended to name new co trustees of

the respectivetrusts M 0 Trust Art l§1 1 I G Trust Art I§ l 1 see also Camp! at 1157 58 In

the I G Trust, the named co trustees by the July 27, 2007, amendment are Ignacia M Gutierrez,

Patricia M Worede, and Manuel P Gutierrez Jr In the M G Trust, the named co trustees are

Manuel P Gutierrez, lgnacia M Gutierrez, Patricia M Worede, and Manuel P Gutierrez Jr

Ignacia M Gutierrez and Manuel P Gutierrez are both deceased, leaving Worede, Gutierrez,

Wittmann, and Valls as the beneficiaries of the I G Trust and the M G Trust Each is entitled to a

twenty five percent (25%) share of the remaining trust property in each trust Comp] at 119

116 I G and M G made their primary living through M G ’3 position as a manager for Avis

Rent a Car Comp! at 1112 M G and I G also owned and operated a gas station at Parcel No 3

Estate La Reine, St Croix, along the Centerline Road Id M G and I G were constantly over

spending and without cash to pay their personal and business expenses 1d at 1113 M G was then

involved in a debilitating accident that lefi them solely reliant on their gas station operations for

their livelihood Id at 1114 Gutierrez returned to the island to assist his parents with the operation

of their business, which was bankrupt, the property and equipment in total disrepair, and had

significant debt obligations Comp] at 1115 17 21 22

117 The gas station property and the family residence located at Plots 114, 115 and 116

Mary’s Fancy, St Croix, USVI were all under owner financed mortgages with balloon payments

coming due imminently Id at 1119 In addition, I G s and M G 8 credit cards were maxed out Manuel R Gutierrez Jr. v Pamela Worede et a] 2024 VI SUPER 3lU 8X 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 4 of 13

Gutierrez helped to rebuild his parents’ business, including injecting his own savings of

approximately $14,000 00 Id at 1120 Guterriez also rebuilt the gas station property into a viable

business and began his own business, Centerline Car Rental Comp! 125 26

18 Meanwhile, 1G and M G continued to live beyond their means and the money

generated by the gas sation business Id 1113, 28, 37 38 They did not pay their personal expenses

or file their tax returns, and their bank accounts were ofien overdrawn Id at 29 Eventually,

Gutierrez took over managing his parents’ personal finances, ensuring that their bills were paid,

and taxes filed and paid [d at 31 37, 48, 49 Gutierrez sometimes floated funds from his own

successful business

119 Gutierrez and the Defendants agreed that as co trustee, Worede would manage their

parents’ Checkbooks, monitor the mail, and file taxes Comp] at 1140 42, 50 51 It was also agreed

that as co trustee, Gutierrez would continue to operate the gas station business and pay the routine

expenses of his parents from the one paid on the commercial lease Id 1140, 48 This arrangement

continued for several years Id 1165 67 On December 4, 2007, the 2001 deed conveying the La

Reine Property to l G as the trustee of the I G and M G Trusts was recorded

1110 In 2010, Gutierrez realized that for four consecutive years income tax returns were not

filed for his parents Moreover, the bank accounts were frequently overdrawn for which he had to

cover some large overdrafts [d at 1165 67

1111 On November 12, 2012, M G died Within seven years, Defendant Worede began

selling I G ’5 real property in Florida and other investments over several years Camp! at 1176

Additionally, money was being transferred from the parents’ accounts to benefit the Defendant

sisters Id at 1182 Manuel P. Gutierrez Jr v Pamela Worede et a1 2024 V1 SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 5 of 13

1112 Beginning in 2015, [G ’8 health declined Id at 1175 Worede and her sisters began

controlling their mother, who was unable to be involved in the management of her affairs Id at

1113 In February 2023 shortly before 1 G 3 death on May 17 2023 Gutierrez learned that

there existed The Second Amendment to the lgnacia M Guitierrez Living Trust’ (“Second

Amendment ’) wherein Worede was named as the Trustee to the exclusion of Gutierrez Comp] at

1192 and 97 98 The Second Amendment had not been delivered to Gutierrez prior to that time and

was not executed in the presence of two subscribing witnesses identifying their place of residence

Id at 1199 Within weeks of l G ’3 death, Defendants withdrew large sums of money from I G

Trust account(s) and distributed the fimds among themselves, to the exclusion of Gutierrez [d at

11116 131

1114 On July I 2024, Plaintiff filed his Verified Complaint A motion for Temporary

Restraining Order and Preliminary Injunction was filed on July 10, 2024 In his motion, Plaintiff

argues that irreparable injury will result if Defendant Patricia M Worede is allowed to continue

acting as co trustee under the Trust Agreement for Manuel P Gutierrez (‘ M G Trust”) and the

Trust Agreement for Ignacia M Gutierrez (‘ I G Trust ), or as the sole trustee under the Second

Amendment to the Ignacia M Gutierrez Living Trust dated February 16, 2001 Plaintiffmaintains

that it is under his fiduciary authority that Worede, along with Ana M Wittmann and Maria I Valls

(the three jointly referred to as ‘ Defendants ’), engaged in intentional improper gifiing and

distribution of trust assets of their parents’ trusts in direct violation of Worede’s fiduciary duties as

(:0 trustee and the terms of the Trust Agreements, done with the intent to harm Plaintiff and prevent Manuel P. Gutterrez Jr. v Patrzcza Worede et a1 2024 VI SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 6 of 13

him from exercising his fiduciary duties as the other co trustee of their parents’ trusts Plaintiff

also claims that Worede failed to account for the property of the Trusts

1] LEGAL STANDARD

A Motion for Preliminary Injunction

1115 In deciding whether to grant preliminary injunctive relief, the Court will consider four

factors (1) whether the movant has shown a reasonable probability of success on the merits, (2)

whether the movant will be irreparany injured by denial of the relief; (3) whether granting

preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting

the preliminary relief will be in the public interest ” Merchants Com Bank v Oceanszde VI” Inc

2018 WL 672177] at *1 2 (V 1 Super Dec 19 2018) (attmg Yusufv Hamed 59 V I 841 847

(2013)) ‘ Some showing on all four factors must be evaluated “under a sliding scale” standard

Moses v Fawkes 66 VI 454 460 (2017) [f the moving party makes a clear showing that

injunctive relief should be granted, it would be deemed to have met its burden Id

1 Reasonable Probability of Success on the Merits

1116 The meritoriousness of the movant claims is the most weighed factor under the sliding

scale standard A strong showing of meritorious claim eliminates the need for a strong showing

that the movant will suffer irreparable harm, which harm is greater than the harm to the nonmoving

party See 3RC & Co v Boynes Trucking Sys 63 VI 544 556 (VI 2015)

1117 For a moving party to show a reasonable probability of success on the merits, the

party only needs to show ‘ a reasonable chance, or probability, of winning ” See Yusqfv

flamed 59 VI at 849 (citing Singer Mgmt Consultants Inc v Mtlgram 650 F 3d 223 229 (3d

Cir 2011)) Manuel P. Gutierrez Jr: v Pamcza Worede et al 2024 VI SUPER 31U SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 7 of 13

2 lrreparable inlug t0 the Movant

1|] 8 lrreparable harm is the primary factor that a moving party must demonstrate to succeed

on a motion for injunctive relief See 3RC & Co , 63 VI at 554 Under the sliding scale standard

the weight placed on a showing of irreparable harm ‘ is less decisive where the likelihood of

success on the merits is very strong Yusuf v Hamed, 59 V1 at 847 “Where the moving party

makes out a very strong showing on the merits injunctive relief may still be appropriate even

where the moving party’s showing of ‘certain and imminent harm for which a monetary award

does not adequately compensate’ is much weaker, so long as the non moving party’s likelihood of

irreparable harm is similarly very low ” 3 RC & C0 , 63 VI at 557

3 Harm t0 the nonmoving Party

1119 Harm to the nonmoving party is another consideration for the Court Sc 6 Yusuf, 59 VI

at 856 The Court’s analysis must not only focus on the harm to the nonmoving party, but it “‘must

be balanced against any similar risk to the other party in the light of the chance of each party to

succeed on the merits ’” See 3RC & C0 63 VI at 555 (quoting Commonwealth v County of

Suffolk 418 N E 2d 1234 l235 (Mass 1981)) If the moving party makes a strong showing on

the merits and a weaker showing of irreparable harm, injunctive relief may still be appropriate if

the nonmoving party's likelihood of suffering irreparable ham when the injunction is granted is

similarly low See 1d at 556 (citing Yusufv Hamed 59, VI at 854) In balancing the likelihood of

harm to each party, the Court should aim to maintain the status quo, which is defined as “‘the last

peaceable, noncontested status of the parties ’ See Yusuf, 59 VI at 856 57 (finding that a

preliminary injunction maintained the status quo by assuring that the parties retained equal control

over their business pending trial) Defendants opposing a preliminary injunction will not suffer Manuel P. Gutterre Jr v Palrlcza Worede et al 2024 VI SUPER 3IU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 8 of 13

irreparable harm if granting the injunction simply maintains the status quo See SBRMCOA LLC

v Morehouse Real Estate Invs LLC 62 VI 168 202 (VI Super Ct 2015)

4 The Public Interest

1120 In considering the public interest, courts ‘ should seek to prevent the parties from

halting ‘specific acts presumptively benefitting the public until the merits [can] be reached, and

a determination made as to what justice requires[s] ’ ’ Yusuf, 59 VI at 858 Particular attention

should be paid to the effect of issuing injunctive relief Id

III DISCUSSION

A The Movant has shown reasonable probability of success on the merits

1|2l Gutierrez makes several meritorious arguments First, he argues that the proposed

Second Amendment to the I G Trust was not executed under the formalities required by law 28

V] C §42 requires an instrument transferring an interest in real property to be executed in the

presence of two witnesses, who shall subscribe their names to the same as such ’ 28 V] C §42

Additionally, each subscribing witness must state “his own place of residence and that he knows

the person described in and who executed the conveyance before an officer who is personally

acquainted with the subscribing witness or has satisfactory evidence that he is the same person

who was a subscribing witness to the instrument ’ ’ 28 V] C (3‘ 43 The Second Amendment of

the I G Trust is signed by Ignacia M Guiterriez as Grantor and notarized; however, there are no

subscribing witnesses

1122 Second, per the terms of the I G Trust, Article [, Section 1 1, before an amendment to

the trust may be deemed effective, it must be delivered to the trustee(s) during the grantor s

lifetime Paragraph 98 of the Verified Complaint states that Gutierrez, as co trustee was not served Manuel R Gutierrez J1: v Pamela Worede et a1 2024 VI SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 9 of 13

a copy of the Second Amendment until after the grantor’s death This failure to effect service on

Gutierrez may breach the I G Trust and invalidate the Second Amendment

1[23 Third, Gutierrez argues that Worede is acting contrary to the terms of the I G and M G

Trusts He cites Article 111, § 3 4 of the l G Trust which provides that the ‘ trustee shall divide the

remaining trust property, including any additions from any sources” equally among the four

children Paragraph 116 122 of the Verified Complaint states that this was not done and,

distribution was made to three of the four trust beneficiaries, and that Woerde refines to make the

distribution to Guiterrez, the fourth beneficiary, despite demands for distribution Additionally

after I G ’5 death, Worede gave Defendant Wittmann a distribution described as a ‘ Mom Gifi”

without distributing it to the other beneficiaries, in contravention of § 3 4 If proven, this may

show that Worede is in breach of the terms of the l G Trust Moreover, as Gutierrez argues, Article

IV, § 4 8 of the IG Trust and M G Trust precludes a co trustee from making discretionary

distributions of income and principal from an account This calls into question whether Worede

had the authority to make the cash distributions

1124 Paragraph 123 131 of the Verified Complaint also alleges that certain valuable personal

property and jewelry were distributed discretely among three of four of the beneficiaries, contrary

to the terms of the Trust and the Parties’ Memorandum of Understanding entered afier the death of

l G Gutierrez claims that this act violated Article III, §3 2 of the I G Trust Section 3 2 states that

the “Trustee shall deliver free from trust all remaining tangible personal property to beneficiaries

who survive me, in proportional value, divided as they agree or if they do not agree within a

reasonable time, as Trustee determines ’ I G Trust Art [1] § 3 2 Manuel P. Gutierrez Jr v Pamela Worede et al 2024 VI SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 10 of 13

1|25 Fourth, Gutierrez argues that Worede acted unilaterally, in disregard to their equal

standing as Co Trustees Paragraphs 76 and 77 of the Ven'fied Complaint allege that Defendants

sold the real property of I G without involving Gutierrez in the sale or obtaining his consent as a

co trustee Additionally, after the death of] G , Worede, Gutierrez, and the other named Defendants

mediated a memorandum of understanding to which all beneficiaries and co trustees signed

Comp] at 1|135 145 148 As alleged in the Verified Complaint the Memorandum of

Understanding (“MOU ) provided for a due diligence period of four weeks within which the

Defendants could determine if they wished to buy Plaintiff’s interest in the La Reine Property Id

at 165 The Parties also agreed to exchange information on the value and status of the assets that

the liquidation or distribution of assets shall be mutually agreed to by all Parties Before the

expiration of the four weeks, Defendants notified that they did not intend to purchase Gutierrez’s

interest in the La Reine property, and Worede preceded to unilaterally sign a sale agreement for

the sale of the Estate Mary’s Fancy properties without Gutierrez 3 knowledge as co trustee and

beneficiary in violation of the agreement

1[26 Worede also made several distributions from I G ’s Merrill Lynch Account after the

death of IG and afler the parties entered the MOU The shares transferred to each of the

Defendants represent their one quarter interest in the Merrill Lynch asset M0! for TRO and Prelim

In] at 9; Comp] at 11159 I64 Despite demands by Gutierrez Worede has refused to distribute his

share to him Id at 1|164 There has been limited and delayed transparency for any of the

distributions of fitnds and personal assets despite requests for accountings [d at 1|72, 94, 125, 131

143, 153 154 If proven, each ofthese acts may establish a breach of the Parties’ MOU agreement Manuel P Gutterrez Jr v Patricia Worede et a1 2024 VI SUPER 3lU SX 2024 CV 00237 AMEDNED MEMORANDUM OPINION Page 11 of 13

{[27 Finally, Gutierrez argues that the unilateral actions of Worede, as co trustee, and the

mismanagement and improper appropriation and distribution of assets of the l G Trust, deprived

him of his “legal right to co manage ’ the I G Trust Gutierrez cites Yusufv flamed, supra, for the

position that he had a legal right as a co trustee to manage the I G Trust, which was unlawfitlly

interfered with by Worede In Yusuf v Hamed, the Supreme Court upheld the finding of the

Superior Court that interference with one party’s management rights by making decisions on

business operations without consulting the other party supports a finding of irreparable harm in

violation of the parties’ contractual management rights Yusef, 59 VI at 854 Gutierrez adds that

the impact of the Defendants conduct caused damage to his “reputation to perform his fiduciary

duties The Court finds that this argument has legal merit not only based on the terms and

enforceability of the Trusts, but also the terms of the MOU

1128 In total, Gutierrez has made a strong showing of meritorious claims

B The movant will be imminently and irreparably injured by denial of the relief

1129 Here, the Court does not find a strong showing of imminent and irreparable injury

Gutierrez argues that he was denied the ‘ legal right” to manage the I G Trust and the M G Trust

by Worede’s unilateral and exclusionary decision making relative to the management and

distribution of trust assets He further claims that given the poor management decisions regarding

the trust assets; the spillover effect would harm his public reputation This argument is lefi to be

proven and is not supported by the record before the court Finally, Gutierrez’s claim that he cannot

be adequately compensated for the personal and unique items of personal property distributed

among the Defendants to his exclusion is unconvincing as a valuation of those items could

establish compensatory recourse However, Worede’s actions immediately following the death of 08/22/2024 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

Manuel P. Gutierrez, Jr., Case Number: SX-2024-CV-00237 Plaintiff Action: Temporary Restraining Order v.

Patricia M. Worede et al, Defendant.

NOTICE of ENTRY of ORDER To Carl A. Beckstedt, III, Esq. Lee J. Rohn, Esq. : Nathan John Mirocha, Esq.

Please take notice that on August 22, 2024 a(n) Amended Memorandum Opinion dated August 22, 2024 was/were entered by the Clerk in the above-titled matter.

Dated August 22, 2024 Tamara Charles : Clerk of the Court By:

Tisha Laurencin Court Clerk II