Turnbull- Wheatley v. Turnbull

2024 V.I. 24

Opinions

Opinion

For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS

KAREN TURNBULL WHEATLEY ) S Ct Civ No 2019 0062 and OTHER HEIRS OF KENNETH ) Re SUPer Ct Civ N0 550 2010 (STT) TURNBULL JR KLARIA TURNBULL ) KEITH TURNBULL and VIVETTE ) TURNBULL )

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 17, 2020 Filed June 5 2024

Cite as 2024 VI 24

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 Attorneyfor Appellee

OPINION OF THE COURT

Opinion of the Court

Page 2 of 22 CABRET, Associate Justice 1]] Karen Tumbull Wheatley, Keith, Klaria, Kenneth Jr , and Vivette Tumbull (“Appellants”) appeal the Superior Court’s denial of partial summary judgment, the Superior Court’s order substituting Appellee Naomi Tumbull (‘ Appellee’ ) as Successor Trustee of the Kenneth Tumbull Sr Revocable Trust, and the Superior Court’s judgment awarding treble damages to Naomi Tumbull For the reasons that follow, we affirm the Superior Court’s denial of partial summary judgment and its order substituting Naomi Tumbull in her successor trustee role as plaintiff However, we reverse the Superior Court’s award of treble damages and remand for a recalculation of damages '

I FACTUAL AND PROCEDURAL BACKGROUND 1|2 Karen, Keith, Klaria, and Kenneth Jr are the children of Ivy Tumbull and Kenneth Tumbull, Sr (“Kenneth Sr”) 2 Vivette Tumbull is the wife of Kenneth Tumbull, Jr Ivy and Kenneth Sr were in the process of constructing an eight bedroom home at Parcel No 13BAA Estate Enighed, N0 1 Cruz Bay Quarter St John l S Virgin Islands (the ‘St John Property”) when Ivy died in 2001 Ivy 5 Estate was admitted to probate, with Karen named as Executrix To pay some of the debts of Ivy’s Estate, and to complete the construction of the St John Property, Kenneth Sr , Kenneth Jr , and Vivette took out a $100 000 mortgage on Kenneth Sr ’5 marital home on St Thomas In return, Karen Keith, and Klaria signed an agreement with Kenneth Jr authorizing him to complete construction on the St John Property, and giving him complete

1 We separately issued our ruling reversing the Superior Court 5 November 15, 2019 Order denying Kenneth Jr ’5 post judgment motion contesting the seizure of his pickup truck to satisfy the judgment See Tumbull Wheatley v Tumbull 2023 V l 17 (2023)

’ Because all parties possess the same last name, they are herein referred to by their first names to minimize confusion

Page 3 of22 control over the St John Property for one year after completion so that Kenneth Jr could rent it

and recoup the money he spent paying the estate debts and completing the construction Because Kenneth Jr was living in Florida at the time, he orally assigned his rights and duties under the agreement to Kenneth Sr '33 Kenneth Sr completed construction of the St John Property by December 2005 and began renting it immediately He collected $8,500 per month in rental income from December 2005 until April 2008 In May of 2008, Karen took over the St John Property and began collecting the rent, halting payments to Kenneth Sr In June 2008, Kenneth Sr filed a claim for $57,887 in unreimbursed funds against Ivy Turnbull’s estate, which was rejected by Karen, as the estate’s executrix $4 The Superior Court closed Ivy 3 estate on March 6, 2009, apportioning a one third interest in the St John Property to Kenneth Sr , and equal one sixth interests to Karen, Keith, Klaria, and Kenneth Jr On March 23, 2009, Kenneth Sr requested an accounting from Karen regarding the rental proceeds and expenses of the St John Property Because Karen never provided an accounting, Kenneth Sr filed a complaint in the Superior Court seeking repayment for the construction completion costs mortgage loan interest expenses, and insurance expenses for the St John Property However, during the pendency of the litigation on June 28, 2013, Kenneth Sr passed away But before he died, Kenneth Sr had created a revocable trust on September 3, 2008, (the “September Trust”) and nominated his aunt, Naomi Tumbull, as successor trustee After his death, the Superior Court substituted his aunt Naomi Tumbull as the Trustee of his revocable trust in the lawsuit 115 The September Trust requires that Kenneth Sr 5 interest in the St John Property be distributed to his uncle Ludence Tumbull and Naomi in equal shares upon Kenneth Sr ’8 death

Page 4 of 22 Pertinent to this case, Article IV of the September Trust specifies that, during Kenneth Sr ’3 life, the September Trust could be revoked or modified as follows

The Settlor may, by signed instruments delivered to the Trustee during the Settlor’s life (1) withdraw property from this Trust in any amount and at any time upon giving reasonable notice in writing to the Trustee, (2) add other property to the Trust (3) change the beneficiaries, their respective shares and the plan of distribution;

(4) amend this Trust agreement in any other respect, (5) revoke this Trust in its entirety or any provision therein, provided, however the duties or responsibilities of the Trustee shall not be enlarged without the Trustee’s consent

Kenneth Sr also created a will on September 3 2008, appointing Ludence as executor As part of the will, he allocated all his personal property that had not yet been distributed by him, and his residual estate, to the Kenneth Tumbull Sr Revocable Trust (the September Trust) 116 On November 4, 2008, Kenneth Sr purportedly created another revocable trust (the “November Trust”) which was to contain the St John Property, a property on St Thomas, and some other personal property The November Trust named Bernice Tumbull, the wife of Ludence Tumbull, and Naomi Tumbull as trustees and beneficiaries, and expressly excluded Karen, Keith, Klaria, and Kenneth, Jr 17 On March 13, 2019, the Superior Court held a bench trial on the claims in the 2010 complaint None of the defendants appeared at the trial, nor were they represented by counsel 3 On July 15, 2019, the Superior Court entered a judgment against Appellants in the sum of $1,328,956 81 for debts owed to the Kenneth Tumbull Sr Revocable Trust, which included the construction costs of the St John Property, the eleven years of unpaid rents owed to the Trust for

‘ Kenneth Jr and Vivette Tumbull were declared in default in the case on March l2 2014 Keith Klaria and Karen Tumbull were the only defendants to file a motion for summaryjudgment on April [2 20 I 7

Page 5 of 22 Kenneth Sr ’3 one third share of the St John Property, treble damages and pre and post judgment interest Appellants timely appealed the judgment on August 14 2019 4 II JURISDICTION AND STANDARD OF REVIEW 18 This Court may not consider the merits of an appeal unless it first determines that it has jurisdiction over the matter VI Gov? Hosps & Health Faczlztles Corp v Gov? of the 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 ” VI CODE ANN tit 4, § 32(a) Because the Superior Court’s July 15, 2019 memorandum opinion and order ‘ dispos[ed] of all of the claims submitted to the Superior Court for adjudication,” it is a final reviewable order St Crozx Ltd v Shell 011 Company 6OVI 468 472 (VI 2014) We also have jurisdiction to review all properly preserved prior interlocutory orders, which have thereby “merge[d] with the final judgment and may be reviewed on appeal from the final order ” [d at 472 73 (quoting In re Estate ofGeorge 59 V I 913 919 (V I 2013)) 119 We conduct a plenary review over the Superior Court’s application of law denying summary judgment, applying the same standard that the Superior Court should have applied and reviewing its findings of fact for clear error Garcza v Garcza, 59 VI 758, 766 (VI 2013) “Because summary judgment is a drastic remedy, it should be granted only when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine

4 Before Appellants filed their appeal, the Superior Court issued a writ of execution on the judgment authorizing the Virgin Islands Marshal to seize the personal property of Kenneth Jr a 2009 Ford pickup truck which the Marshal did seize Kenneth Jr 5 motion requesting release of the vehicle was denied and he appealed separately from the seizure of his truck and the denial of his motion for its release We issued our opinion on this related matter separately See Turnbull Wheatley 2023 V l 17

Page 6 of 22 issue as to any material fact and that the movant is entitled to judgment as a matter of law ” Walters v Walters 60 V l 768 774 75 (V I 2014)

[11 DISCUSSION

1110 Appellants argue that the Superior Court erred when it denied their motion for summary judgment Appellants also argue that the Superior Court erred when it substituted Naomi as trustee of Kenneth Sr ’5 revocable trust and as the party in interest in the lawsuit, and that the Superior Court likewise erred when it entered a treble damages award against them Naomi responds that Appellants Kenneth Jr and Vivette may not advance these arguments because they lack standing We address these arguments below A Naomi’s Waiver Arguments 1111 Naomi argues that because Kenneth Jr and Vivette did not move to set aside the default entered against them on March 12, 2014, they lack standing in this appeal Naomi also argues that because Karen, Keith, and Klaria failed to appear at the March 13, 2019 bench trial, they defaulted on their claims and are estopped from challenging the Superior Court’s findings of fact of conclusions of law Finally Naomi argues that because Karen, Keith, and Klaria ‘failed [to move] to alter, amend or set aside the Judgment within the time allotted,” they have waived all of their arguments However, the latter two arguments are factually inaccurate as the record shows that no default was entered against Karen Keith or Klaria, and further shows that Karen did move for reconsideration and a new trial which application was denied by the Superior Court on August 1 2019 1112 Moreover, Naomi cites no relevant case law to support the argument that Kenneth Jr and Vivette lack standing, have waived their rights or are estopped from contesting the trial court 5 decision Therefore, Naomi has waived these arguments, and Kenneth Jr and Vivette may proceed

Page 7 of 22 as proper parties to this appeal to the extent that their arguments are properly preserved 5See V I R APP P 22(m) (issues that are unsupported by citation to legal authority are deemed waived for purposes of appeal); Mahabtr v Heirs ofGeorge 2021 V I 22, $11 n 6 ‘lll3 But Naomi s waiver arguments fail on the merits as well, since in the Virgin Islands, standing is not a jurisdictional bar to a court 3 ability to hear a case Rather, as Virgin Islands courts are not Article III courts, and are therefore not subject to the same constitutional constraints on jurisdiction, this Court treats standing as a judicially imposed claims processing rule that is subject to waiver Benjamin v A10 Ins Co ofPuerto RICO 56 V I 558 564 65 (V I 2012) See United Corp v Hamed 64 V I 297 303 (V I 2016)

B The Motion for Summary Judgment 1H4 We now proceed to the merits Karen, Klaria, and Keith argue that the Superior Court erred in finding that the St John Property remained in the September Trust, and thus erred in denying their motion for summary judgment They argue that Kenneth Sr revoked the September Trust by creating the November Trust, and that because Kenneth Sr did not validly convey the St John Property out of the September Trust and into the November Trust, the November Trust is invalid Therefore, since neither trust held Kenneth Sr ’3 property, all of Kenneth Sr ’5 property must pass to them through the laws of intestacy To address Appellants’ arguments we must examine the state of the law of trusts within the Virgin Islands Revocation of Trusts

5 See Angelo Iafrate Cons! LLC v Potashmck Cons! Inc 370 F 3d 715 722 (8th Cir 2004) ( When co defendants are similarly situated inconsistent judgments will result if one defendant defends and prevails on the merits and the other suffers a defaultjudgment To avoid such inconsistent results ajudgment on the merits for the answering party should accrue to the benefit of the defaulting party )(citing Frow v De La Vega 82 U S (15 Wall ) 552 554 (1872))

Page 8 of 22 ‘15 Appellants concede that Kenneth Sr validly formed the September Trust, but argue that Kenneth Sr ’8 purported creation of the November Trust revoked the September Trust, squarely raising the question of what is required to revoke an express non charitable trust in the Virgin Islands, an issue of first impression in this Court Specifically this Court must define the legal standard for revocation of a trust whose settlor has expressly reserved the power of revocation and specified the method of revocation 1|16 When Kenneth Sr established the September Trust in 2008, before our opinion in Banks v [111'] Rental & Leasmg Corp had issued the controlling rule was “When no precedents relate specifically to the adjudication of a Virgin Islands dispute, the courts are directed to turn to the various Restatements of Law which are to provide the rules of decision for such cases in the absence of local laws to the contrary ’ 55 V I 967 974 (V I 2011) (quoting Co Build Cos Inc v V] Refinery Corp 570 F 2d 492 494 15 V I 528 533 (3d Cir 1978)) The most recent Restatement,” 1d at 976, at the time and the one that is both current today and pertinent to the issue sub Judlce, states “If the terms of the trust reserve to the settlor a power to revoke or amend the trust exclusively by a particular procedure, the settlor can exercise the power only by substantial compliance with the method prescribed ” RESTATEMENT (THIRD) OF TRUSTS § 63, cmt i (2003) However, while helpful at times, “the Restatements no longer constitute the rules of decision in Virgin Islands courts King v Appleton 61 V I 339 349 (V I 2014) (quoting Brunn v Don dye 59 V I 899 911 n 10 (V I 2013)) and we do not mechanicaIly apply the most recent Restatement” to our decisions Banks, 55 V I at 976 Instead, we analyze common law questions of first impression through the framework established in Banks Here, in the absence of statutory authority, we must perform a Banks analysis to flesh out the rule of trust revocation that is best for

Page 9 of22 the Virgin Islands See ng, 61 V I at 352 n 11 (“[A] number of areas of trust law will require

further examination under the Banks factors ”) See also Banks, 55 V I at 981 84 Banks Analysis

117 “Under Banks, we consider (1) the common law rule this jurisdiction has applied in the past, (2) the majority rule adopted in otherjurisdictions, and most importantly (3) the soundest rule of law for the Virgin Islands Wzlkmson v Wilkmson 70 V I 901 907 (V I 2019)

1 Vzrgm Islands Common Law 1|18 We must first distill the common law rule applied previously in the Virgin Islands regarding the revocation of trusts In Estate of Savam, the Territorial Court, relying on the Restatement (Second) of Trusts, held that in a revocable trust “[i]f the settlor specifies in the terms of the trust the particular manner in which the trust can be revoked, the settlor can then only revoke the trust in that manner 39 V I 77 88 (V I Terr Ct 1998) aff'd sub nom In re Savam 43 V I 215 (D V 1 App Div 2000) (citing RESTATEMENT (SECOND) OF TRUSTS § 330(1) cmt j (1959)) The Appellate Division of the District Court affirmed Estate ofSavam, similarly stating that “[i]f the settlor reserves a power to revoke the trust only in a particular manner or under particular circumstances, he can revoke the trust only in that manner or under those circumstances ” In re Savam 43 V I at 227 (quoting RESTATEMENT (SECOND) OF TRUSTS § 330(1) cmt j (1959)) The District Court of the Virgin Islands had also addressed the issue of trust revocation in Hodge v Hodge 15 V I 154 174 (D V I Feb 9 1997) and held that where the trustor does not expressly reserve the power of revocation, ‘no power to revoke is inferred ” The limited Virgin Islands case law on this topic shows that the common law rule applied in the past was that where the trust terms specifically reserve the power of revocation, revocation can only occur in strict adherence with those terms See Estate ofSavam, 39 V I at 88 ( [T}he settlor has power to revoke the trust to

Page 10 of 22 the extent that by the terms of the trust he reserved such a power ”) (quoting RESTATEMENT (SECOND) OF TRUSTS § 330(1) (1959))

2 The Mammy Rule 1|l9 At common law, the majority of jurisdictions follow the same approach as the Virgin Islands courts in Savam when a revocable trust expressly specifies the method of revocation, revocation may only occur in strict adherence to the method provided 6 Further, the case law from

6 See Merchants Na! Bank ofMobile v Cowley, 89 So 2d 616, 623 (Ala 1956) (“[W]here the settlor reserves a power to revoke the trust in a particular manner, he can revoke it only in that manner ) Alello v Clark 680 P 2d 1162 I 168 (Alaska 1984) (“Where method of revocation specifically reserved to written notice delivered to the Trustee [n]o other method of revocation is permissible under the terms of the Trust ) Schuster v Schuster 251 P 2d 631 636 (Ariz 1952) (“It seems well established that where the settlor reserves the power to revoke a trust only in a specified manner or under particular circumstances, he can revoke the trust only in that manner or under those circumstances } Gall v Umon Na! Bank of Little Rock 159 S W 2d 757 761 (Ark 1942) ( The rule seems to be well settled that where a trust agreement by its own terms sets out the method by which it may be revoked it can be revoked only in the manner thus provided ) Brown v Inl'l Tr Co 278 P 2d 581, 583 (Colo 1954) (en banc) (‘ [l]f a particular method of revocation is specified, that procedure must be strictly followed in order to make the revocation effective ) Sec Tr Co v Spruance, 174 A 285, 288 (Del Ch 1934)( Where apower to revoke is reserved but the manner of its exercise is specifically prescribed, a revocation to be effective must conform to the designated manner ) Fla Na! Bank of Palm Beach Cry v Genova 460 So 2d 895 896 (Fla I984)( The settlor has power to revoke the trust to the extent that by the terms of the trust he reserved such a power ) (quoting RESTATEMENT (SECOND) 0r TRUSTS § 330(1)) accord Gwfinkel v J05! 972 So 2d 927 928 (Fla Dist Ct App 2007)( [T]he exercise of a power to revoke or amend a trust must be done in strict conformity with the terms expressed in the instrument ’) (citing MacFarIane v FMS! Natl Bank of Miami 203 So 2d 57 60 (Fla Dist Ct App 1967)) Woodru/f v Tr C0 of Georgia 210 S E 2d 321 322 324 (Ga 1974) (Where the settlor reserve[d] the right to revoke th[e] trust by instrument in writing signed by [the settlor] and delivered to trustee, but only with the written consent and approval of the trustee[,]” the settlor “was bound by the tenns of the agreement, under which she could not revoke the trust without the consent of the trustee )‘ Cf Mtller v F(rs! Hawaiian Bank, 604 P 2d 39 4| :1 5 (Haw 1979) (“Where a settlor reserves a power to modify a trust only in a particular manner or under particular circumstances he can modify the trust only in that manner or under those circumstances ”), Walter E Wilhlte Revocable Living Tr v Nw Yearly Meeting Pensmn Fund 916 P 2d 1264 1270 (Idaho 1996) ( When a settlor provides for the mechanism by which the power of revocation is to be exercised these procedures must be followed for there to be a valid revocation ) Warner v Kaiser, 177 N E 369, 375 (1nd App 1931) (en banc) (The right to revoke must be exercised ‘according to the terms in which it is reserved’ before the death of the settlor); In 1e Est ofSanders, 929 P 2d 153, 158 (Kan 1996) (The authority [is clear] that where a trust document contains specific provisions to be complied with, they are required to be followed )‘ Downs V See Tr Co of LeXIngton 194 S W 1041 1043 (Ky 1917)( When a deed of trust provides a particular mode of revocation, an effective revocation may be made only by pursuing that mode ’ )‘ McLendon v First Na! Bank ofShreveport 299 So 2d 407 411 (La Ct App 1974)( [U]nder common law trust principles where the settlor of a trust has reserved the right to revoke the trust only with the consent of the trustee, the trustee s consent is essential )(citing RESTATEMENT (SECOND) 01 TRl'STs § 330 330(1) 33 1) Brown v Fld Tr Co 94 A 523 525 (Md 1915) ( [B]y the terms of the deed [of trust] it could only be revoked by the method provided by the deed itself ) Phelps v State St TI Co 115 N E 2d 382 383 (Mass 1953) ( The law of Massachusetts is plain that a valid trust once created cannot be revoked or altered except by the exercise of a reserved power to do so, which must be exercised in strict conformity to its terms ”), Connecticut Gen Life Ins Co v First Na! Bank of

Page 11 of 22

Minneapolis, 262 N W 2d 403 405 (Minn 1977) (revocable trust could only be revoked by written instrument as specifically set forth within the reservation of power to revoke clause); sterodl v Hamlen, 20 So 143 144 (Miss 1896) (A trust is subject to a ‘right of revocation, if exercised according to the terms of the trust as declared[,]” or, stated another way, a settlor ‘may declare a trust revocable upon a named contingency” and then the beneficiaries will only take “upon the condition that the revocation does not follow upon the happening of the contingency ) Love v St Louis Union Tr C0 , 497 S W 2d 154, 159 (Mo 1973) (en banc) (where settler reserved the right to alter, amend, or revoke a trust by written notice delivered to trustees settlor could only alter, amend, or revoke the trust in this manner); Mayer v Tucker 141 A 799 801 (N J 1928) (“If [the] right [to revoke] is never exercised according to the terms in which it is reserved it can have no effect on the validity of the trust ) accord Clark v Freeman, 188 A 493 495 (N 1 Ch 1936) ( ‘The power [to revoke] can be exercised only in the manner specified and by the persons to whom the power is given or the attempted revocation is void ) In re Mordecar's Tr , 201 N Y S 2d 899, 902 (N Y Spec Term) affd sub nom Matter of Mordecai: Tr 210 N Y S 2d 478 (N Y App Div 1960) ( [W]here the procedure for revocation is clearly set forth in the trust instrument the conditions imposed may not be ignored So at common law, with the rule as to revocation similar to the statutory rule in this state, if the settlor reserves at power to revoke the trust only with the consent of the trustee, the trust can not be revoked without such consent ’) (citation omitted); Ridge v Bright, 93 S E 2d 607, 611 (N C 1956) (A trust remains unrevoked where a reserved power of revocation is not exercised “according to the terms in which it is reserved )(quoting Withermgton v Herring, 53 S E 303 304 (N C 1906)) Morey v Sohzer 3 A 636 (N H 1886) (Settlor revoked the deed [of trust] according to the power of revocation therein contained ) Magoon v Cleveland Tr Co , 134 N E 2d 879, 883 (Ohio Ct App 1956) ( [l]f a particular mode of revocation is specified it is essential that the mode specified be strictly followed in order to make the revocation effective ’ Where a settler ‘specifIies] a particular mode of revocation and alteration in the trust instrument [they are] bound to its terms ) ImeReId 46 P 3d 188 190 (Okla Civ App 2002)( If the settlor reserves the power to revoke the trust only by notice in writing delivered to the trustee, he can revoke it only by delivering such a notice to the trustee ) (quoting RESTATEMENT (SECOND) OF TRUSTS § 330 cmt j)‘ Scalfaro v Rudloflfi 934 A 2d 1254, 1257 (Pa 2007) ( When a settlor of a trust reserves 3 power to revoke in a given manner and under certain conditions, revocation cannot be effected in another manner ”) (citing Damian: v Lobasco, 79 A 2d 268, 271 (Pa 1951)) Union Tr Co v Watson 68 A 2d 916 919 (R 1 1949)( Where the senior reserves 21 power to revoke the trust in a particular manner he can revoke it only in that manner ”); Peoples Nat Bank ofGreenwlle v Peden, 92 S E 2d 163, 165 (S C 1956) (“If a particular mode of revocation is specified in a deed of trust it is essential that the mode specified should be followed in order to make the revocation effective ) Schroeder v Herbert C Coe Trust 437 N W2d 178 185 (S D 1989) In re GulfPenszon Ling 764 F Supp 1149 1188 (S D Tex 1991) afld sub nom Bars! v Chevron Corp 36 F 3d 1308 (5th Cir 1994) cert demed514 U S 1066 (1995)( At common law where the settler reserved a power of revocation in the terms of the trust, he could revoke the trust in the manner and to the extent that he reserved such a power ) Kline ex rel Kline v Utah Dep’t of Health 776 P 2d 57 61 (Utah Ct App 1989) (“[A] trustor has the power to [revoke] a trust only if and to the extent that such a power was reserved by the terms ofthe trust 1fthe settler reserves a power to revoke the trust only in a particular manner or under panicular circumstances, he can revoke the trust only in that manner or under those circumstances ’) (citing and quoting RESTATEMENT (SECOND) 0F TRUSTS § 330 cmt j (1959)) Cohn v Cent Na: Bank of Richmond 60 S E 2d 30 33 (Va 1950) (“[1]fa particular mode ofrevocation is specified it is essential that the mode specified be strictly followed in order to make the revocation effective ”); Lynch v Lynch 522 A 2d 234, 235 (Vt 1987) (Where a grantor retains a power ofrevocation the grantor may terminate it at any time in the manner and to the extent to which he has reserved the power of revocation ); In re Burton's Est 490 P 2d 731 733 (Wash 1971) (en banc)( Where the trust instrument specifies the method of revocation only that method can be used ) (citing RESTATEMENT (SECOND) 0r TRt ISTS § 330 cmt j (1959)) One Valley Bank Na! Assn v Hunt 516 S E 2d 516 520 (W Va 1999)( A trust which is subject to revocation can be revoked only in accordance with the terms thereof 11‘ the settler reserves at power to revoke the trust only in a particular manner or under particular circumstances he can revoke the trust only in that manner or under those circumstances )(quoting RESTATEMENT (SECOND) 0r TRUSTS § 330 cmt j) Richardson v Stephenson 213 N W 673 674 (Wis 1927) ( ‘[1]t is generally held that the [reserved] power of revocation must be strictly pursued and that a mere substantial compliance with the trust instrument is not sufficient ) Matter ofEst ofLOhI‘Ie, 950 P 2d 1030 1034 (Wyo 1997) ( Revocation may only be exercised in the manner specified )

Page 12 of 22 the majority rule jurisdictions relies on the Restatement (First) of Trusts, (see, e g , Calm, 60 S E 2d at 35; Schuster, 251 P 2d at 636) or the Restatement (Second) of Trusts (see, e g , Estate of Savant 39 VI at 88 afld 43 VI 215' Estate ofSanders 929 P 2d at 159 Atello 680 P 2d at 1168), as those authorities were the preeminent persuasive guidance available at the time most courts developed this aspect of their common law Under the minority view, the strict compliance requirement is relaxed, with courts recognizing that when a trust specifies the method of revocation, it may be revoked by substantial compliance’ with its terms 7 1120 Although an analysis under Banks is not concerned with statutes or the statutory scheme of other jurisdictions, we would be remiss if we failed to recognize that the Uniform Trust Code (‘ UTC”) has been adopted, either in whole or in part, by thirty six jurisdictions The UTC, under Section 602(0), adopts the substantial compliance rule based on the Restatement (Third) of Trusts 3 Notwithstanding this trend away from the strict adherence rule, the maj ority common law rule remains intact 9

7 See HackIey Union Nat Bank v Farmer 234 N W 135 141 (Mich 1931) (finding there ‘was such a substantial compliance [with the specified method of revocation] that it effectively revoked the trust’ ); Miller v Etch Na! Bank of Tulsa 80 P2d 209 210 12 (Okla 1938) (trust was properly revoked despite not strictly complying with the method of revocation provided) In re Est ofLarson 2007 WL 404714 at *3 (Wash Ct App 2007) rev dented 178 P 3d 1033 (Wash 2008) (‘ Where a trust instrument specifies the method of revocation, the trustor must substantially comply with that method )(citing Williams v Bank ofCaI N A 639 P 2d 1339 (Wash 1982)) In re Wendland Remer Tr 677 N W26 117 121 (Neb 2004) (Where the settler reserved and specified the method of trust modification the court found under the common law that [s}ome courts adhere to a strict compliance standard The modern trend, however, backs away from strict compliance Both the Restatement (Third) of Trusts and the Uniform Trust Code provide that a settlor may amend a trust by substantially complying with a method set out in the terms of the trust )

3 Section 602(c) of the UTC provides that a settler may revoke a trust by substantial compliance with a method provided in the terms of the trust,” or ”if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive by (A) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or (B) any other method manifesting clear and convincing evidence of the settlor’s intent ”

9 The common law of those jurisdictions that have declined to follow the UTC continue to rely on the language of the trust instrument as evidence of a settlor’s true intent See In 12 Trust of Flmt, 1 18 A 3d 182 (Del Ch Ct 2015)

Page 13 of 22 3 The Soundest Rule tor the Vzrgm Islands 1|21 The third step in a Banks analysis requires this Court to weigh all persuasive authority, both within and outside of the Virgin Islands, and to determine the most appropriate and cogent common law rule for the Virgin Islands based on the unique characteristics and needs of the territory Gov't ofthe V] v Connor 60 VI 597 603 (VI 2014) (per curiam) In analyzing the third factor, we must consider the practicability and the purpose the proposed rule will serve, as well as the rule that is best in accord with the public policy of the Virgin Islands, including consistency with related statutes, courts rules, and judicial precedents Machado v Yacht Haven US V1 LLC 61 VI 373 379(V12014) 1122 “The polestar of trust interpretation is the settlor's intent ” Giller v Grossman, 2021 WL 3889320 at *3 (Fla Dist Ct App 2021) See Covenant Presbytery v Fzrsl Baptist Church 489 S W 3d 153 156 (Ark 2016)‘ In re Estate of Warden 2 A 3d 565 572 (Pa Super Ct 2010)‘ Storkan v Ziska 94 N E 2d 185 188 (Ill 1950) I mv ofS Indiana Found v Baker 843 N E 2d 528, 532 (Ind 2006) (‘ The primary purpose of the court in construing a trust instrument is to ascertain and give effect to the settlor's intention ”) Moreover, ‘[t]here is no higher duty which rests upon a court than to carry out the [valid] intentions of a testator ’ Shelton v King, 229 U S 90 101 (1913)

(“The cardinal rule of law in a trust case is that the intent of the settlor controls the interpretation of the instrument ‘Such intent must be determined by considering the language of the trust instrument read as an entirety, in light of the circumstances surrounding its creation All other rules of construction must be subordinate to determining [the] settlor’s intent their value being as aids in ascertaining that intent as precisely as possible ‘ ) (citing Chavm v PNC Bank 816A2d 781 (Del 2003)) Huggertyv Thornton 68 Cal Ct App 1003 1008 (Cal 2021)( [l]f the trust instrument “explicitly makes the method of revocation provided in the trust instrument the exclusive method or revocation the method in the trust instrument must be used )

Page 14 of 22 1123 In light of these principles, we agree with the Superior Court that the soundest rule for the Virgin Islands is that when a settlor has reserved the power of revocation, revocation can only be accomplished by strict adherence to the terms of the trust, as that rule best respects the settlor s intent, and protects the public’s interest, thereby instilling faith in future settlors by limiting revocation to the specific terms of the trust Turnbull v Turnbull 68 V I 534 542 43 (V I 2018) The rule of strict adherence” will best uphold the integrity of the settlor’s true intent at the time of drafting and avoid affording unnecessary leeway and conferring unintentional benefits upon any party excluded from taking under the trust Further, an adoption of the strict adherence standard will preserve judicial economy by preventing litigation by excluded heirs to circumvent the express revocation methods of a revocable trust Finally, like the Superior Court, we believe that “future settlors stand to lose little as they are limited only by their own terms ” Id at 543 Alleged Revocation of the September Trust 1124 We now address Appellants’ arguments that (l) the creation of the November Trust revoked the September Trust, and (2) Kenneth Sr did not validly convey the St John Property out of the September Trust and into the November Trust Article IV of the September Trust provides that

The Settlor may, by signed instruments delivered to the Trustee during the Settlor 5 life

lR]evoke this Trust in its entirety or any provision therein, provided, however [that] the duties or responsibilities of the Trustee shall not be enlarged without the Trustee’s consent

Appellants contend that pursuant to the Article [V revocation power, Kenneth Sr revoked the September Trust by creating the November Trust We must first determine whether Kenneth Sr ’5

Page 15 of 22 purported creation of the November Trust strictly adheres to the specified method of revocation delivery of a signed instrument to the trustee during the settlor 3 life 1125 As a preliminary matter, we note that Kenneth Sr was both the sole settlor and trustee of the September Trust However, we conclude that Kenneth Sr did not have to deliver a written instrument to himself in order to strictly adhere with the specified method of revocation in the September Trust Barnette v McNulIy 516 P 2d 583 586 (Ariz Ct App 1973) ( It would be absurd to require the settlor to call himself up on the telephone as trustee and tell himself that he is revoking the trust It would be equally absurd to have the settlor send himself a letter as trustee to inform himself as trustee that the trust is to be terminated ”), Paul v Arvzdson, 123 P 3d 808, 811 (Okla Civ App 2005) ( Because [the property owner] was both the Grantor and the [trustee] (sic), we will not impose a technical requirement that he deliver written notice to himself ”), Moon v Leszkar 230 S W 3d 800 806 (Tex App 2007) ( When the trustee is also the settlor of the revocable trust, the settlor is not required to serve written notice on himself ”); Argo v Moncus, 721 So 2d 218 222 (Ala Civ App 1998) Alerus Fm NA v W State Bank 750 N W 2d 412 423 (N D 2008) Gelber v Glock 800 S E 2d 800 807 n 7 (Va 2017) See also In re Wendland Remer Tr 677 N W 2d 117 122 (Neb 2004) Therefore in this case the Appellants merely had to show that Kenneth Sr intended to terminate the September Trust’s property provision Barnette, 516 P 2d at 586 Creation of a new trust document can demonstrate this intent to revoke on the part of the settlor trustee, Arwdson, 123 P 3d at 809, as Appellants assert, provided that the intent is clear, ‘ not repugnant to settled principles of public policy and is otherwise valid ” Shelton, 229 U S at 101 Consequently, ifa settlor trustee wants to create a different trust he or she can ‘ revoke [an] old trust and create the new one in a single transaction ” Cowley, 89 So 2d at 623 (quoting RESTATEMENT (FIRST) OF TRUSTS § 330 cmt 1) Thus we agree with those jurisdictions that hold

Page 16 of 22 that where the settlor and the trustee are the same person, it is not necessary for the settlor to deliver a written instrument to himself to achieve revocation 1l26 Nevertheless, for the November Trust to properly revoke the September Trust, the November Trust had to be a valid trust In King v Appleton we established the elements necessary to create a valid trust “(1) a valid conveyance of a trust property (2) from a settlor who intends to create a trust, (3) to a trustee to hold legal title (4) for the benefit of a third party beneficiary ” King 61 VI at 351 52 l0Under the first element of this test the deeding of the St John Property into the November Trust was an essential element to the validity of the November Trust But the St John Property was never deeded into the November Trust Thus, the November Trust was invalid Because the deeding of the St John Property into the November Trust did not occur, the September Trust was never revoked and the St John Property remained in the September Trust ‘1 As Kenneth Sr did not validly create the November Trust, the September Trust was never revoked and we affirm the Superior Court’s denial of Appellants motion for summary judgment C Substitution of Naomi Turnbull as Party in Interest

1" The November Trust also fails as a matter of invalid creation The creation of a valid trust must include (1) a declaration and intention to create a trust (2) a description of the property and (3) the trustee 5 handling and acceptance of the subject matter as a trust‘ King 6] V I at 352 (citing In re Estate of Mo; ton 769 P 2d 616 620 (Kan 1987) holding ‘the elements necessary to the creation of a valid trust are (3) [the] trustee s handing and acceptance ofthe subject matter as a trust’ ) Here because the November Trust lacked the signatures ofthe co trustees and failed to provide a way for the co trustees to accept the November Trust could not constitute a valid trust

' Indeed, in the Virgin Islands ‘[f]or an inter vivos gift of real estate to be effective [there must be] (1) a donative intent on the pan of the grantor at the time the deed was executed and (2) an actual or constructive delivery of the deed to the grantee Chestnut v Goodman 59 V I 467 473 (VI 2013) (internal quotations omitted) (emphasis added) There is no evidence of a deed to putative November Trust trustees Bernice and Naomi Therefore, there was no donative intent “at the time the deed was executed because Kenneth Sr did not execute a deed and further there was no “delivery,” [(1 which cannot demonstrate a present intent to transfer title to the St John Property See also 28 V I C §§ 41 42

Page l7 of 22 1l27 After Kenneth Sr died, the Superior Court substituted Naomi Tumbull in his stead as successor trustee of the September Trust on March 10, 2014 The Appellants concede that they believe “the successors in interest are Bernice and Naomz ,” (emphasis added) which seems to foreclose their assertion that the Superior Court improperly substituted Naomi as the party in interest '2 We have already determined that the September Trust is the only valid trust in the present circumstances, and that the St John Property is part of the September Trust corpus, and therefore Naomi was indeed properly substituted as successor trustee, as she had been named by Kenneth Sr as a successor trustee in the September Trust See Dale Exp] LLC v Hzepler, 945 N W 2d 306 313 (N D 2020) reh g dented (July 22 2020) ( [T]he successor trustee[] was pr0perly substituted as a party for [the] trustee upon [his] death ’), see also 5 V I C § 78, FED R CW P 25(a), V I R Civ P 25(a)(l) Consequently, the Superior Court committed no error when it substituted Naomi in place of Kenneth Sr , and we affirm the Superior Court on that issue as well D Damages Award

1|28 We now turn to the damages award On July 15, 2019, the Superior Court entered a judgment in Naomi’s favor for $1 328 956 81, reflecting (l) outstanding debts owed to Kenneth Sr related to construction costs, and (2) for the eleven years of unpaid rents owed to Kenneth Sr for his one third share of the St John Property, with the unpaid rental amount trebled for Appellants’ alleged “waste” in withholding the payments

" Appellants also argue that Bemice’s presence during all hearings before the Court was improper as her presence is only “legally permissible under the November Trust ” As it follows, Appellants assert that her panicipation in the $$$$th suggested that the trial court and the Plaintiff have agreed that the November Trust is the real trust in

Page l8 of 22 fil29 We will not disturb the Superior Court's ruling on the adequacy of damages absent a showing of a manifest abuse ofdiscretion as our review of a damage award is exceedingly narrow Myers v Derr, 50 V I 282, 287 (V I 2008) However, our review is plenary when the trial court's decision involves the application of law or a matter of statutory interpretation [d Outstanding Debts and Expenses Related to Construction Costs 1|30 The Appellants set forth several arguments attacking the damages award First, they argue that the Superior Court failed to consider that Kenneth Sr collected rental income for over two years to offset his initial investment in the construction on the St John Property The Superior Court did in fact recognize that Kenneth Sr recouped $207,000 from renting the property from 2005 until April 30, 2008 However, it is unclear to what extent, if at all the court found that those rents offset Kenneth Sr ’8 construction expenses 1B] In June 2008, Kenneth Sr filed a claim for $57 887 26 arising from unreimbursed construction expenses In this case, the court found that “[a]s of the date Karen took over the Property, Kenneth Sr was still owed [the] $57,887 26 for outstanding expenses relating to the Pr0perty construction ’ Further, within Kenneth Sr ’5 verified notice of claims he avers

The total amount of expenses paid by Mr Turnbull was $232,614 41 [,] plus interest [in the amount of] $32,272 85L] plus closing costs on the loans, to be supplemented once obtained from the bank for a current subtotal of $264 887 26 Of the $207 000 received by Mr Turnbull in rental income, $83 510 15 has been applied towards interest and principal leaving a balance owed to Mr Turnbull of $57,887 26

Accordingly, it is respectfully requested that the Court award him judgment against the Estate for the balance of what is owed to him, $57,887 26 plus the costs incurred in securing the loans plus interest

Therefore, it is unclear why the Superior Court adds $160,048 09 to this claim, for a new figure of $217,935 34 in allegedly unreimbursed expenses The court found four sources of unreimbursed expenses in accumulating this new total

Page 19 of 22

i Insurance expenses in the amount of $4,743 01 paid to Family Insurance Agency in 2008 ii Banco Popular Mortgage Interest expenses from 2008 to 2013 totaling $26 210 13 and principal expenses totaling $49 219 52 on the Mortgage of the Home;

iii Banco Popular Loan No 104 001 0178072 003 (representing Kenneth Tumbull, Sr '5 Consumer Loan on his Dodge Safari) a loan in the amount of $44 000 00 plus interest from 2005 through 2007 in the amount of $9 698 50 for a total of $53 698 50 and iv Banco Popular Loan No 104 001 0178072 0005 (representing Kenneth Tumbull, Sr '8 Consumer Loan on his Toyota Camry refinance, also using his taxi medallion as collateral) a loan in the amount of $25,000 00 plus interest through 2007 in the amount of $1 176 92 for a total of $26 176 92 Kenneth Sr states in his verified notice of claims that he has already been reimbursed for certain

amounts on the auto loans and the home mortgage as of 2008, however the Superior Court still lists the auto loans as fully unreimbursed While interest on unreimbursed expenses certainly may have grown from the time Kenneth Sr filed his initial claim, there must be more clarity within the Superior Court’s award as to the unreimbursed construction expenses stemming from the loans and mortgage If some of the original $207 000 in rent proceeds did not go to the loans, the Superior Court must make clear where the rent proceeds did go, so as not to create a windfall $32 The Superior Court further adds $28,400 88 to the expenses award $12 950 88 for various amounts Kenneth Sr borrowed from relatives and, subsequent to his passing, $15,450 00 in funeral costs and appraisal fees for expert witness Elisa Runyon for a grand total of $246,336 22 in unreimbursed expenses The Appellants do not dispute the additional $28,400 88 Therefore, on the issue of unreimbursed expenses, we remand this matter for the Superior Coun to recalculate and specify the damages in excess of the original reimbursement claim by Kenneth Sr ($57 887 26) and the undisputed damages listed above ($28 400 88) which total $86 288 14 1133 The Appellants also maintain that Kenneth Sr was legally responsible for a one third share of the building costs for the Property and that the Superior Court’s calculation did not take this

Page 20 of 22 into account However, this issue was not raised before the trial court and therefore it is waived V I R APP P 22(m) (“Issues that were not raised or objected to before the Superior Court are deemed waived for the purposes of appeal ”) They also contend that the Superior Court’s calculation of the damages owed for construction costs was improper because there are costs included for car notes on a Dodge Safari and a refinanced Toyota Camry, and that there is no evidence that the two vehicles were used in or were related to, the cost of construction However, this argument is also waived, as the Appellants did not raise it before the Superior Court See V I R APP P 22(m) Finally, the Appellants assert that the verbal assignment of rights between Kenneth Sr and Kenneth It should have been in writing as it concerns an interest in property However the Appellants did not raise this issue before the Superior Court, and therefore it is also waived on appeal Id Withheld Rental Income and Waste 1B4 The Appellants allege that the trial court erred by trebling the undisputed rental income damages of $360 873 53 awarded to Naomi under 28 V I C § 334 We agree 28 V I C § 334 states in pertinent part

If a guardian or a tenant in severalty or in common for life or for years of real property, commits waste thereon any person injured thereby may maintain an action for damages therefor against such guardian or tenant In such action there may be judgment for treble damages

To state a claim under § 334, a complainant must plead that another party (1) is a guardian or tenant in severalty or in common for life or for years,” (2) that they committed waste as to the property, and (3) that the complainant suffered injury due to the waste CB] AcquISIIIOI‘IS LLC v Morrzsette 2016 WL 8732792 at *4 (D V I 2016) (unpublished) The Virgin Islands Code does not define waste but “[w]aste may be generally defined as the destruction, misuse, alteration

Turnbul! e! a] v Turnbull 2024 V124 S Ct Civ No 2019 0062 Opinion ofthe Court Page 21 of 22 or neglect of premises by one lawfully in possession thereof, to the prejudice of the estate or

interest therein of another 47 AM JUR 3d ProonfFacts § 2 (1998) See also BLACK 5 LAW DICTIONARY 1905 (11th ed 2019) (defining ‘waste” as ‘ permanent harm to real property committed by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman”) Here, the record does not disclose any destruction or harm to the St John Property Moreover, Naomi’s complaint did not plead a cause of action under § 334, and did not allege any claim of waste, but rather, the Superior Court trebled the damages award under this statute sua sponte without examination or explanation and without evidence of waste Thus, the trial court abused its discretion by trebling the damages award for the rents owed, and this portion of the award must be reduced to its original undisputed amount of $360,873 53 See thllzp v Marsh Monsanto, 66 V I 612, 622 (V I 2017) (“The court may not assume the role of advocate or rewrite pleadings to include claims that were never presented ”) (internal quotation marks omitted) Durga Prop Holdings Inc v Holiday Park Realty LLC 2020 WL 1488660 at *2 (Mich Ct App 2020) (unpublished) (“The trial court abused its discretion by sua sponte awarding plaintifftreble damages [P]]aintiff failed to allege in its complaint that defendant was liable for conversion, thereby precluding itself from recovering treble damages from defendant [C]0urts are ‘not permitted to graft onto a pleading allegations a party has not made ”’) (quoting Nyman v Thomson Reuters Holdings Inc 942 N W 2d 696 704 (Mich Ct App 2019) appeal dented 943 N W 2d 94 (Mich 2020))

CONCLUSION

1|35 Because Naomi waived her arguments regarding standing and estoppel, Kenneth Jr and Vivette may participate in this appeal As Kenneth Sr did not validly create the November Trust, the September Trust is the only valid trust We therefore affirm the Superior Court’s denial of the

Page 22 of 22 Appellants’ motion for summary judgment and the substitution of Naomi Tumbul] as successor trustee of the September Trust However, because the Superior Court abused its discretion in trebling the rental income damages, we reverse the Superior Court’s July 15 2019 order and we remand the case to the Superior Court for the calculation of any damages in excess of Kenneth Sr ’3 original claim for reimbursement and the other undisputed damages totaling $86,288 14, and to award this recalculated sum, plus the sum of $360,873 53 in undisputed rental income owed as a judgment in favor of the September Trust Dated this 5"1 day of June, 2024 BY THE COURT

§ K

c, , am e . / MARIA M. CAB

Associate

ATTEST VERONICA J HANDY ESQ Clerk of the Court

By Isl Reisha Corneiro Deputy Clerk

Dated June 5: 2024