Turnbull- Wheatley v. Turnbull

Opinions

Opinion

For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS

KAREN TURNBULL WHEATLEY ) S Ct Civ No 2019 0091 and OTHER HEIRS, KENNETH ) Re Super Ct Civ No 550 2010 (STT) TURNBULL JR KLARIA TURNBULL ) KEITH TURNBULL, and VIVETTE ) Consollsiated Cases TURNBULL ) S Ct Civ N0 2019 0062 ’ S Ct Cw No 20l9 009]

Appellants/Defendants )

)

V )

)

NAOMI TURNBULL as Successor Trustee ) of the KENNETH TURNBULL SR ) REVOCABLE TRUST ) Appellee/Plaintiff )

)

On Appeal from the Superior Court of the Virgin Islands Division of St Thomas & St John Superior Court Judge Hon Renee Gumbs Carty

Considered November 19, 2020 Filed December 29, 2023

Cite as 2023 VI 17

BEFORE RHYS S HODGE Chief Justice' MARIA M CABRET Associate Justice and IVE ARLINGTON SWAN Associate Justice

APPEARANCES

Clive C Rivers, Esq Law Offices of Clive Rivers St Thomas U S VI Attorneyfor Appellant

Anna H Paiewonsky, Esq Paiewonsky Law Firm, PLLC St Thomas U S VI Attorney)?” Appellee

OPINION OF THE COURT

Opinion of the Court

Page 2 of 7

CABRET, Associate Justice 1| 1 Kenneth Tumbull Jr appeals from the Superior Court’s order denying his post judgment motion contesting the Virgin Islands Marshal’s execution on his truck For the following reasons, we reverse the Superior Court’s order I FACTUAL AND PROCEDURAL BACKGROUND 112 This appeal stems from a judgment in the sum of $1,328,956 81 issued on July 15, 2019 in favor of the Kenneth Tumbull Sr Revocable Trust and against Karen Tumbull Wheatley, and Kenneth Tumbull Jr as well as Keith Klaria and Vivette Tumbull (0091 JA 64) ' The judgment directed the sale of Parcel No 13BAA Estate Enighed, in St John (the “Property”), and ordered the seizure of Karen’s one sixth interest in the proceeds from the Property sale, as well as the seizure of any real or personal property owned by Karen (0091 IA 78 80) Finally, provided a debt remained after Karen’s one sixth interest in the Property and personal property was seized, Kenneth Jr , Keith, and Klaria’s equal one sixth interests in the proceeds from the sale of the Property could also be seized 2 (009] JA 111 114)

1 By order entered on October 16 2020, this appeal was consolidated for argument with Case No 2019 0062 1 The July 15 2019 judgment reads in part

ORDERED that if the Property cannot be sold by a real estate agent within 6 months fiom the date of this Order, then it must be seized and sold at a Marshal 5 sale by public auction to the highest bidder with the proceeds distributed pursuant to this Order; and it is further

ORDERED that any and all of Karen Tumbull Wheatley’s one sixth interest in the proceeds fi'om the sale of the Property shall go to Plaintiff to satisfy Plaintiff’s one third interest in the rental income that was never distributed to Plaintiff and to pay down any balance on the $1,082,620 59 entered against her and in favor of Plaintiff; and it is further

ORDERED that the V l Marshals are hereby authorized to seize any and all assets belonging to Karen Tumbull Wheatley, including any bank accounts at FirstBank Virgin Islands, Bank of Nova Scotia, Banco

Page 3 of 7

113 Following entry of the judgment, the Appellee Naomi Turnbull, as Successor Trustee of the revocable trust, filed an amended praecipe requesting a writ of execution (0091 JA 82 83) This praecipe identified nine real and personal property assets belonging to Karen Id In response, the Superior Court issued a writ directing the Marshal to seize the “personal [assets] belonging to said debtor (0091 JA 85' Appellant s Br At 11 12) Although the Superior Court did not specifically refer to Karen by name in the writ of execution, and instead used the words “said debtor,” these words could only reasonably be understood to refer to Karen, since Appellee, in the praecipe requesting the writ, had identified only Karen’s property Thus, execution pursuant to the writ was limited to Karen’s Specified real and personal property (0091 JA 82 83, 85) Notwithstanding the express terms of the judgment and the writ of execution, the Marshal seized Kenneth Jr 3 truck on November 4 2019 (0091 Appellant 5 Br at 11 12) The following day Kenneth Jr filed a motion requesting the Superior Court to order the release of his truck on the basis that the seizure was wrongful and not in compliance with the court’s judgment, which only authorized the seizure of all of Karen’s real and personal property followed by the seizure of the one sixth interests in the Property held by Kenneth Jr , Keith, and Klaria (0091 JA 94 96) The Superior Court denied that motion and Kenneth Jr timely appealed the Superior Court’s order (0091 JA 123 0091 Not of Appeal)

Popular de Puerto Rico, Merchants Commercial bank GERS pensions, retirement funds, and any real or personal property to satisfy the balance of the debt plus interest at 4% per annum until judgment is satisfied in full, and it is further

ORDERED that if after Plaintiff receives Karen Tumbull Wheatley’s one sixth interest and the $1,082,620 59 judgment is not satisfied, Plaintiff shall receive any and all of Kenneth Jr , Keith, and Klaria’s one sixth interests in equal amounts to satisfy the outstanding balance of the judgment that represents Plaintiff’s one third interest (0091 JA Ill “4)

Page 4 of 7

II JURISDICTION AND STANDARD OF REVIEW 1|4 This Court may not consider the merits of an appeal unless it first determines that it has jurisdiction over the matter VI Gov’t Hosps & Health Faalmes Corp v Gov’t ofthe VI , 50 V I 276, 279 (V I 2008) “The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court ” V I CODE ANN tit 4, § 32(a) “A denial of a post judgment motion is a final order from which an appeal may [lie] ” Estate of Ludzngton v Jaber 54 V I 678 681 (V I 2011) See Nestor v Dependable Ins Co 535 So 2d 710, 710 (Fla Dist Ct App 1988) (a court’s grant or denial of a motion following the execution on a judgment is considered an appealable final judgment in itself) (citing Orange Belt Packing Co v International Agrzcultural Corp 150 So 264 265 (Fla 1933)) 3

III DISCUSSION

A Seizure of Kenneth Jr ’s Truck by the Marshal

1|5 Kenneth Jr argues that the Superior Court erred in allowing the Marshal to seize his truck to satisfy the judgment and erred in denying his post judgment motion requesting the release of his truck (0091 Appellant 3 Br at 7 13)

116 First, Kenneth Jr argues that the Superior Court’s order denying his motion was invalid, as the Marshal could not levy on the writ beyond the statutory sixty day period pursuant to 5 V I C

3 See also Nat'l DISC Corp v 0 Mel! 194 F 2d 452 456 (6th Cir I952)( The writ ofexecution is not the judgment Its function is to make effective the prior judgment of the Court ’) Juneau Spruce Corp v Int’l Longshoremen's & Warehousemen’s Union, 128 F Supp 697 705 (D Haw 1955) (“A writ of execution is not part of thejudgment itself and must be distinguished from it It is a procedural devi[c]e issued by a court to assist a successful litigant in obtaining the benefits of the judgment awarded him Its sole function is related to enforcing the judgment of the court )(citations omitted) Cahn v Allen 8 A 2d 67 67 (N J Sup Ct 1939)( Here it is not a judgment that is sought to be reviewed but subsequent proceedings thereon Execution is no part of the judgment It is rather an entirely subsequent proceeding in the cause ’ )

Page 5 of 7

§ 474 4 (0091 Appellant’s Br at 13) Kenneth Jr also argues that the execution violated his Fourth Amendment constitutional rights against unlawful seizures (0091 Appellant’s Br at 18) But Kenneth Jr waived these arguments as he failed to raise them in his November 5, 2019 motion to the Superior Court requesting the release of his truck See V I R APP P 4(h) (“Only issues and arguments fairly presented to the Superior Court may be presented for review on appeal ”), Alvarez v Est of Keel, 2020 V I 15, I 17 n 5 Consequently because Kenneth Jr waived these arguments, we do not address them 117 Kenneth Jr also contends that the Superior Court erred in denying his post judgment motion because the seizure of his truck was not authorized by the underlying judgment (0091 Appellant’s Br at 16) We agree 118 In the Virgin Islands, a writ ofexecution must substantially describe the judgment and state the monetary amount due V I CODE ANN tit 5 § 473 The writ if against the property of a judgment debtor or judgment debtors, must follow a particular procedure when seeking to satisfy the underlying judgment Id First, if the judgment directs that particular property be sold, the writ of execution must require the Marshal to sell such property and apply the proceeds as directed by the judgment V I CODE ANN tit 5 § 473(1) See In re FzrstBank Puerto RICO 2008 WL 5605713 at *2 (VI 2008)(unpublished) Otherwise, the judgment, with any attendant interest must be satisfied out of the debtors’ personal property 1d If sufficient personal property cannot be found, then the judgment must be satisfied out of the debtors real property 1d See Stack s v Gordon, 17 V I 177 185 (Terr Ct 1981) See also Wezss v Oat 640 Fed Appx 164 167 (3d Cir 2016) While a writ need not identify particular property, it cannot direct the seizure of property not

4 VI CODE ANN [it 5 §474

Page 6 of 7

identified in the judgment See Great Bay Condomzmum Owners Ass n v Merryman, 2010 WL 7371946 at *2 (VI Super Aug 9 2010) see als0J.H. Jewelry Co v V] Jewelry& Repazrs 17 VI 215 217 18 (VI Super Feb 24 1981) Further the execution may not exceed the scope and terms of the underlying judgment Cztzmortgage Inc v Manmng, 2011 WL 3855736, at *2 (V I Super July 7 2011) 1l9 Here the Superior Court judgment Specifically ordered the sale of the Property, followed by the seizure of Karen’s proceeds from the sale and then by seizure of Karen’s real and personal property (0091 IA 78 79) The seizure of assets does not extend to any property of Kenneth Jr , except for his one sixth interest in the Property conditioned on the judgment remaining unsatisfied following execution upon Karen’s one sixth interest in the Property sale and execution upon her personal assets (0091 JA 80; 95) Further, the writ never authorized the seizure of real or personal propeIty belonging to Kenneth Jr The writ only authorized the seizure of Karen’s property Therefore, the seizure of Kenneth Jr ’3 truck was not lawful IV CONCLUSION

1[10 Because the Marshal’s seizure of Kenneth Jr ’3 truck exceeded the terms of the July 15 2019 judgment, and the writ did not authorize its seizure, the execution was invalid under V I CODE ANN tit 5 § 473(1) Consequently the Superior Court erred by denying Kenneth Jr 5 motion requesting the release of his truck We therefore reverse the Superior Court’s denial of Kenneth Jr ’3 motion and remand to the Superior Court with directions to enter an order requiring the Marshal to release Kenneth Jr ’5 truck Dated this 29th day of December, 2023 BY THE COURT

Page 7 of 7

C §~

15’ 7 9‘

a M A M C 4 RET )

A sociate Justic

ATTEST '/

VERONICAJ HANDY ESQ Clerk ofithe Court

B§4AKOAALAO~ M Deputy Clerk ‘7

Dated ‘02 a i g 5