Government of the Virgin Islands, In re Department of Human Services for the Temporary Care, Custody & Control of Francis

51 V.I. 947, 2009 WL 1564178, 2009 U.S. Dist. LEXIS 46541
CourtDistrict Court, Virgin Islands
DecidedMay 28, 2009
DocketCivil App. No. 2005-165
StatusPublished

This text of 51 V.I. 947 (Government of the Virgin Islands, In re Department of Human Services for the Temporary Care, Custody & Control of Francis) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Government of the Virgin Islands, In re Department of Human Services for the Temporary Care, Custody & Control of Francis, 51 V.I. 947, 2009 WL 1564178, 2009 U.S. Dist. LEXIS 46541 (vid 2009).

Opinion

GÓMEZ, Chief Judge of the District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands', and D’ERAMO, Judge of the Superior Court, Division of St. Croix, sitting by designation.1

MEMORANDUM OPINION

(May 28, 2009)

George H.T. Dudley (“Dudley”) appeals from a June 16, 2005, order of the Superior Court requiring him to appear in person at a hearing in a matter before the Family Division as well as at all hearings in all matters in which Dudley has been appointed as counsel.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dudley is an attorney with the law firm of Dudley, Topper and Feuerzeig, LLP (“DTF”), located on St. Thomas, U.S. Virgin Islands. On January 29, 2002, the Superior Court appointed Dudley as guardian ad litem for a minor in a custody dispute before the Family Division of the Superior Court, pursuant to Title 5, Section 2542 of the Virgin Islands Code.2 On January 31, 2002, another DTF attorney, Paula D. Norkaitis, filed a notice of appearance on behalf of the minor. On October 6, 2003, another DTF attorney, A.J. Stone, III, also filed a notice of appearance on behalf of the minor. Several hearings in this matter were held before the Superior Court. The record reflects that Stone was copied on orders from the Superior Court following his notice of appearance.

On May 2,2005, the Superior Court held another hearing in this matter. Another DTF attorney, R. Clay Travis, appeared on the minor’s behalf [952]*952and stated on the record that he was standing in for Stone. The following exchange then took place between the trial judge and Travis:

The Court: Attorney Travis, were you the one appointed in this case?
Attorney Travis: No, I was not.
The Court: Where is Attorney Dudley?
Attorney Travis: I was assigned it because A. J. Stone had left the firm.
The Court: I’m going to pass this matter to give Attorney George Dudley 15 minutes to appear.
Attorney Travis: Fifteen minutes?
The Court: Yes. Fie was appointed to represent the minor in this matter. His appointment has not been revoked by this Court; there was no motion for substitution filed in this matter, nor approved by the Court. As far as this Court is concerned, you have no right to appear on behalf of Attorney Dudley to represent the minor at this time.

[J.A. at 8-9.]

Dudley thereafter appeared in person, and the hearing proceeded.

On June 16, 2005, the trial judge entered an order (the “June 16, 2005, Order”) that provided, in pertinent part:

4. Attorney George Dudley shall appear at the next hearing and shall be prepared to represent the minor.
5. Attorney George Dudley shall ascertain the cases he has been appointed to in this Court, and shall be required to appear at the hearings, failing which, a warrant for his arrest shall be issued, in addition, he shall show cause why he should not be held in contempt of this Court.

[J.A. at 6.]

On July 11, 2005, Dudley filed a motion for substitution of counsel, asserting that

nothing in the statutes pursuant to which he was appointed or the rules of this Court preclude him from fulfilling his duty to represent [the minor] by designating any competent attorney atDTF to appear on his behalf. Further, Dudley submits that [the minor] would be better [953]*953served if she were represented by one of the more experienced litigators at DTE

[J.A. at 25.]

On July 15, 2005, before the Superior Court ruled on Dudley’s motion, Dudley timely filed a notice of appeal of the June 16, 2005, Order with this Court. Dudley thereafter filed a motion to stay the June 16, 2005, Order. On September 20, 2005, the trial judge denied both the motion for substitution and the motion to stay.

In his appeal, Dudley asks this Court to determine whether: (1) he may, as a court-appointed guardian ad litem , designate another DTF attorney to appear on his behalf; and (2) the trial judge abused his discretion in ordering Dudley to appear in person at all hearings as a court-appointed guardian ad litem.3 In the alternative, Dudley asks the Court to issue a writ of mandamus.

II. DISCUSSION

A. Appealability of the June 16,2005, Order

Before proceeding to the merits of this appeal, the Court must satisfy itself that it has jurisdiction to review the June 16, 2005, Order.

This Court has jurisdiction to review final orders in civil cases. See V.I. CODE Ann. tit. 4, § 33. The requirement of finality, also known as the final judgment rule, means that “ ‘a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits.’ ” Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 429-30, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981)). The Supreme Court has explained that “the final judgment rule serves several salutary purposes”:

It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal [954]*954appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of avoiding the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. The rule also serves the important purpose of promoting efficient judicial administration.

Cunningham v. Hamilton County, 527 U.S. 198, 203-04, 119 S. Ct. 1915, 144 L. Ed. 2d 184 (1999) (quoting Firestone Tire & Rubber Co., 449 U.S. at 374). Consistent with these principles, the Supreme Court has held that a decision is not final unless it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. ’ ” Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S. Ct. 1945, 100 L. Ed. 2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 (1945)).

Here, the June 16, 2005, Order does no more than require Dudley to appear in person before the Superior Court at all hearings in a matter in which he was appointed guardian ad litem.

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Bluebook (online)
51 V.I. 947, 2009 WL 1564178, 2009 U.S. Dist. LEXIS 46541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/government-of-the-virgin-islands-in-re-department-of-human-services-for-vid-2009.