Victor v. Todman

2024 V.I. 18

• Court: Supreme Court of The Virgin Islands
• Decided: April 2, 2024
• Docket: SCT-CIV-2018-0045
• Status: Published

Opinion

For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

FRANKLYN 0 VICTOR ) S Ct Civ No 2018 0045 AppellanL/Defendant ) Re Super CI Civ N0 626 08 (STT)

) ) V ) ) MONICA TODMAN ) Appellee/Plaintiff ) )

On Appeal from the Superior Court of the Virgin Islands Division of St Thomas & St John Superior Court Judge Hon Kathleen MacKay

Considered October 8 2019 Filed April 2 2024

Cite as 2024 VI 18

BEFORE RHYS S HODGE ChiefJustice IVE ARLINGTON SWAN Associate Justice and MARIA M CABRET, Associate Justice

APPEARANCES

Francis E Jackson, Jr , Esq Law Offices of Francis E Jackson, Jr St Thomas U S V] Attorneyfor Appellant

Judith L Boume, Esq The Boume Law Office PLLC St Thomas U S V] Attorneyfor Appellee

OPINION OF THE COURT

SWAN Associate Justice

1|] Appellant, Franklyn 0 Victor seeks reversal of the February 21, 2018 judgment of the

Superior Court of the Virgin Islands (‘ Superior Court ) awarding him a one halfundivided interest Victor v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion 0fthe Court Page 2 of 57

in Parcel no 278 Hospital Ground, St Thomas ( 278 Property or “278 ’), arguing that he is

entitled to a larger share of the property and generally challenging the distribution of the property

ownership and mortgage liability between himself and Monica Todman, with whom he jointly

purchased the subject property in 2001 On her cross appeal, Ms Todman argues that appellant’s

contention that the only evidence of Todman 8 claim of lack of intent to convey her interest in the

subject property to Victor via a 2003 quitclaim deed was her uncorroborated testimony is

misplaced She fimher argues that she was not negligent in failing to have that quitclaim deed

read to her before she signed it, due in part to the relationship of confidentiality and trust that had

existed between them at the time Lastly she argues that appellant’s contention that the Superior

Court should have equitably distributed the property on the basis of a current appraisal lacks a

legal basis and that the Superior Court erred in failing to correct its finding that her interest in the

property was burdened by what would have been the entirety of the principal balance of the

mortgage affecting the property as of the date of trial, rather than only one half of that principal

balance For the reasons elucidated below, we affirm in part and vacate in part and remand the

case to the trial court for the taking of further evidence and fithher determination of the equitable

distribution of the 278 Property and the mortgage debt on that property

I BACKGROUND

1|2 On December 18, 2008, Appellee, Todman, filed a verified complaint in the Superior

Court

A The Bench Trial

113 The bench trial commenced on May 26, 2016 Todman s first witness was Gerald Laurie

Laurie resided on St Thomas and had known Victor for approximately 24 years Laurie and Victor

had met when they both lived on the island of Tortola in 1993 or 1994 and both being from VILIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 3 of 57

Guyana, they formed a friendship It was during Laurie s residence on Tortola that he also came

to know Todman, whom he understood to be Victor’s spouse While the specifics are unclear,

Laurie s testimony supports certain conclusions While living on Tortola, at the same time as

Victor and Todman, Laurie and Victor established a friendship through which Laurie was

introduced to Todman, though that acquaintance was insignificant At some point after meeting

Victor, Laurie returned to Guyana While he lived there, Victor would visit Guyana, and Laurie

would meet him upon his arrival Starting in 2002 or 2003, Laurie assisted Victor in constructing

a home in Guyana In reviewing building plans during this time, Laurie noticed that Monica

Todman was listed on a set of plans, and when asked about this Victor explained that Todman

was ‘his girl ’

‘14 In 2005, during some ofthese conversations, Victor informed Laurie that he wished to get

rid of” Todman During this return visit to Guyana, Victor explained that he told Todman that a

document was necessary for him to obtain a bank loan and asked her to sign it In actuality, it was

a deed purporting to transfer to him Todman 5 interest in the 278 Property In 2005, Victor

likewise asked Laurie to come to St Thomas and assist in building the home at 278 Laurie had

experience in carpentry and electrical work; he lived with and worked for Victor from

approximately 2005 2008

1|5 During this time, many Guyanese people worked on the construction of the home

Approximately nine people were living with Victor including in addition to Todman and the

children' those working for him at the Hospital Ground property Laurie explained that, during

the time working for Victor he worked ‘ three years straight non stop Non stop Even Christmas

E; included—the son Daryl Victor and Victor‘s nephews, Jamaine and Jamal Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 4 of 57

day, holiday ” I try to help him as a friend, and secondly, I didn’t had [sic] a choice I didn t

[have] a choice I had to do it Laurie was never fitlly compensated for his three years of work,

but he also did not pay rent, though he was required to contribute to payment of the electrical and

gas bills Indeed, Victor paid none of the Guyanese workers When asked whether this was

volunteer work, Laurie responded, “we had to work We didn’t [have] a choice We didn t [have]

a choice 2 Even when Victor took days off, Laurie would still work at the property During cross

examination, Laurie explained that he came to St Thomas at the invitation of Victor, and Victor

made everything possible for [Laurie] to get [to St Thomas] ” When Victor 5 counsel asked how

Victor assisted in this regard, Laurie responded by invoking his Fifth Amendment3 right to remain

silent

1|6 The trial court heard Laurie 3 description of the relationship between Todman and Victor

during that time and also heard Victor s description of the relationship Todman would provide

food for the construction workers and did so for the three years Laurie worked for Victor During

2 During cross examination, Victor’s counsel pressed Laurie on the issue ofcompensation, and the following exchange occurred

Counsel And you were paid for the work you did for his construction business, were you not? Laurie Ahm Counsel Yes or no? Were you paid? Laurie I need to explain to it Counsel Yes or no? Were you paid? Laurie I need to explain that part The Court Sir you need to answer the question Laurie Okay Yes

The court followed up asking, You were paid for work that you did for Mr Victor at other properties? ‘ Laurie answered, ‘ Yes Sometimes ’ 3 The Revised Organic Act makes the Fifth Amendment 8 protection from forced confessions applicable to the Virgin Islands See Govt ofthe V I v Huggins 6 VI 3 l4(V[ Super Ct 1967) (noting that Virgin Islands tax laws must ‘conform[ ] to the due process’ and equal protection clauses of the Revised Organic Act and the due process’ clause of the Fifth Amendment of the Constitution of the United States ) Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 5 of57 that time, neither he nor Victor went to the grocery store or otherwise brought groceries for the

home If Todman did not cook herself, she brought food from her place of employment, a

restaurant She also paid the telephone, gas and electrical bills for the home Todman used her

vehicle to transport workers and building materials in addition to cleaning the worksite and

generally ‘work[ing] tirelessly like a horse During cross examination, Laurie explained that,

while both Todman and Victor transported building materials, with Victor utilizing his truck to

transport larger materials and Todman using her sedan to transport the smaller materials, he was

unsure which of the two, or whether both, had paid for the building materials that were used

117 In addition to feeding those in her home, Todman provided food to the workers in the

evenings and on Sundays She would cook the food and bring it to the worksite When Todman

did not cook, Victor, Laurie, and all the others would receive food from Todman’s place of

employment As Laurie explained, Whoever working how many people, right, you would call

and me and him would go and pick up the food ” Laurie testified that, during this construction at

278 Hospital Ground, he resided with Todman and Victor, just next to his next house ” Those

men working for and living with Victor were him, “Buckman,” “Tony,’ and “Skilleye,” all from

Guyana, and they all slept in the living room of Victor’s home Generally, the men would ‘work

for [Victor] in the day and if they don t go out [at night] they got to go and work at the property

With regard to Laurie’s asserted lack of choice in working he explained, ‘ if we didn’t work we

had to leave the country Victor 8 counsel ventured to ask, Did you consider yourself a slave? ’

To which Laurie explained, “Well the way how things with him, the way how things went, as

I say, we had no choice, you know, we had no choice ’ In 2008, Laurie quit working for Victor

and moved out of Victor’s property and lived in various apartments on St Thomas It was at this VICIOI v Todman 2024 VI 18 S Ct Ci» No 2018 0045 Opinion of the Court Page 6 of 57

time that Laurie 5 employment with Victor terminated, though when asked where he sought new

employment, Laurie again invoked his right to remain silent

118 During cross examination, Laurie was asked by defense counsel, “Would you tell us, Mr

Laurie, when you decided to stop working for Mr Victor and you moved out from the house, you

did so without fear of being of any punishment for that, didn t you? When Laurie provided an

explanatory answer, he was interrupted ‘ right, really just calls for yes or no answer You no

longer felt fear of moving out?” Laurie stated simply, “No ” However, defense counsel followed

up, ‘Okay So you discover that you really had a choice to stop working for Franklyn Victor, isn t

that correct? Well, let me rephrase the question You exercise the choice you exercise the choice

to stop working for Mr Victor? You decide you would no longer work for him; right?” Laurie

responded, “Yes ”

‘|9 Defense counsel then pressed further, asking Okay And there was no change between

2005 and 2008 that brought you to that realization isn’t that correct?” Laurie then explained,

“Yes There was a change ’ “I hadn t a choice I had a choice in the sense that, if better can’t be

done with less worst continue ” I meet a stage whereby, if better can t be done, worst gone

continue So I had to leave Whatsoever happen will happen ’ “I was forced Yes ”

1|10 During re direct examination, Laurie further explained the circumstances of his

employment and his ultimate decision to stop assisting Victor When Laurie agreed to come from

Guyana to St Thomas, it was agreed that, for each four weeks he worked, Victor would pay him

for one week and keep three weeks’ pay as ‘ savings” for Laurie Laurie, using the funds from his

one week’s pay, would save to provide money to his family in Guyana It was expected that Victor

would deliver the money to Laurie’s family upon one of his many visits to Guyana, while Laurie

was living on St Thomas At a time when Victor had saved approximately $ 10,000 for Laurie View! v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion of the Court Page 7 of 57

and Laurie had given Victor his own funds with a request that Victor deliver them to Laurie 5 wife

in Guyana, Victor simply never delivered the money to Laurie 5 wife (or anyone else) and never

returned it to Laurie

111 1 When be confronted Victor, Laurie was first thwarted when Victor told him to talk to him

at a later date Then, when Laurie followed up at the specified time, Victor simply refused to

explain where Laurie’s money was, telling him, I say don t ask me for the money ” Laurie was

never paid the funds that Victor had agreed to hold on his (Laurie’s) behalf

1|12 Jacob Christian, Victor’s cousin, was the next witness called on behalf of Todman

Christian and Victor had known each other since they had lived in Guyana, and Christian had

helped Victor construct the cistern at the 278 Property, finishing work in 2003 Christian had

helped Victor at the location because Victor was his cousin; so, Christian was not paid The work

performed by Christian ‘was voluntary ’ Christian knew other men (up to four at a time, with the

men changing over time), such as a man named Gerald, working at the site, having known them

back in Guyana During Christian 5 time working with Victor, he never saw anyone receive

payment Christian also knew Todman and saw her ‘ involvement in the work on the house” and

knew of her relationship with Victor Christian confirmed that she would bring lunch to the

worksite Similarly, Victor would ask Todman to transport building materials, including cement

supplies, to the site and she would Likewise, she assisted with actual construction at the 278

Property However, during his time, it was Christian and Victor who did most of the work

1113 Thevar Bristol, Todman 5 daughter, was Todman’s next witness When living with her

mother, both she and her brother would read Todman 8 letters and other correspondence and

documents out loud to Todman because Todman could not read During cross examination, Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 8 of 57

Thevar was asked whether she had ever observed Todman reading a newspaper, and she stated

that she had not

1114 Todman then called Attallah Bertrand Rogers (‘ Bertrand ) Bertrand worked for Scotia

Bank and oversaw a mortgage loan obtained by Victor She served as the custodian of records for

the times relevant to Victor’s obtaining financing on the properties subject to this lawsuit In 2004,

Scotia Bank had approved a loan in the amount of $256,000 to construct a home on the 278

Property Victor had provided a quitclaim deed executed in 2003 whereby, ostensibly, Todman

had transferred her interest in the 278 Property to him As of the day of Bertrand s testimony, had

the mortgage on the 278 Property not been refinanced, and assuming payments had been made on

time, the balance due was $226,64l 57 Additionally, Victor obtained a line of credit in July of

2006 secured in part by the 278 Property

1115 Todman testified that she had known Victor for 24 years, having met him in Tortola while

babysitting with Victor 5 sister They began an intimate relationship, and Todman had a child with

Victor, a son named Daryl Victor She had two older children, Shane and Thevar Bristol, who

would stay with Victor and the rest of the family in the summers when school was in recess [n

1997, Todman and Victor moved their family to St Thomas at which time Todman 5 two older

children began living with them, and they remained together until 2008

1H6 When Todman and Victor were living in the Bovoni neighborhood on St Thomas, one

night, Victor informed her of a piece of propeny located “around the field on top the hill ” Victor

further informed Todman that they were scheduled to view the property the next day Following

this, they proceeded to apply for a loan, and in order to obtain this financing for the purchase,

Todman provided the down payment, as Victor did not have any cash reserves VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 9 of 57

1117 As to Victor 3 work history on St Thomas, Todman explained that, initially, Victor did not

get much work He would get some odd jobs, but nothing too substantial At the time they

purchased the 278 Property, Victor was working three or four days a week Todman attended the

closing for 278, and Victor read the documents to her Victor told Todman that it was his intention

to build a two story building wherein they could live in the lower level and lease the upper level,

generating income Victor found the workers to help with the construction, and Todman supplied

the food, for which Victor never gave Todman any compensation, even if she bought it from her

place of employment As construction advanced, Todman assisted with obtaining and delivering

building materials such as paint At other times Victor and Todman would work in conjunction

without the other workers Todman would hand cement, steel, and other materials to Victor for

concrete work

1118 One afternoon, Victor came to Todman while they were living in Bovoni Todman was

busy mopping the bedroom floor, as she was cleaning the house on her day off, when Victor

approached her and informed her that, in order to obtain a loan to refinance the 278 Property,

Todman must sign a paper Victor further explained to her that, since she had already signed on

the previous loan, she did not have to attend the closing for this loan; all that was necessary was

her signature on the paper Todman was unable to read what was written on the paper While only

Victor and Todman were in the bedroom when Todman executed her signature, Jamaine Cotton

was elsewhere in the apartment, and the children, then in junior high, were in the living room

1|l9 One day a year or two after the time when Victor asked her to execute the paper in the

bedroom, Victor informed Todman that there was a house for sale “round the field on top the hill,

close to the other property” that they owned Victor wanted the family to move to this new

location Victor then took Todman to the property, showing her around and inquiring about her Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 10 of 57

thoughts and opinions Todman then, a week or two later, executed a document at Victor 5 request,

as he had told her it was necessary for them to purchase the new property Again, she did not read

because she could not and trusted Victor to explain the meaning of the document

1120 The family moved from Bovoni to the Parcel no 290 Property in 2005 290 Hospital

Ground consisted of one building with two three bedroom apartments on the top two levels and a

one bedroom apartment on the lower level Victor collected the rent from the topmost apartment

and lower apartment; Todman trusted him in this family financial matter While living at 290, as

there was no rent to pay, Todman supplied the food, paid for cable TV and telephone service, and

took care of the children Victor paid the mortgage At this time, Victor 5 nephews joined the

family after the death of Victor’s sister Todman raised Victor 5 nephews as her own children,

putting them through school, taking them to sports events, doing anything a parent would do

However, anytime the nephews asked Victor for money, he sent them to Todman

1i2| When construction at the 278 Property was completed, the family moved to that property

278 was a building with three levels, each with four bedrooms; the family lived in the middle level

Like with the 290 Property, Todman trusted Victor to collect the rental income on the other two

apartments at 278 as well as the third apartment at 290, as it was being leased after the family had

relocated Again, the expenses were divided, with Victor paying the mortgage and Todman

covering the remainder of the family expenses

1122 In 2008 Victor kicked Todman out” of the 278 Property Todman was served with a

paper to appear in court, and at that hearing she was informed that her name was no longer on the

title to 278 With regard to the order from the domestic violence matter, Todman explained that

Victor had kicked her out of the house, and only after that had the court ordered her to remain

away from 278 VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page I I of 57

1123 Todman was specifically asked, ‘If you had known that your name was no longer on the

record or no longer on the property as an owner in November of 2003 would you have acted any

differently from then until 2008?’ Todman unequivocally stated that she would not have put her

money, hard work, and heart into “all these things what I do for him I would not have do that ’

As her reason for her actions she explained, He make me believe that I have a part sharing what

we he tell me what we communicate we do together and it wasn t so It s the day when I go to

court I understand all the paper what he give me to sign it was actually false He told me sign this

to get the loan and it was to take me off the house ” As an example of other actions by Victor that

induced Todman to believe they were acting as a partnership in their family life, Victor took

Todman to a property in the Fredenhoj neighborhood because he wanted to purchase it Victor

again provided a document to Todman for her signature in order to obtain financing Todman

observed that other signatures were already present on this document

1|24 With regard to the domestic violence matter, Todman explained that, one day, she woke

up and was cooking breakfast for the family (including Victor), and she was served with an order

to appear in court In response to Victor’s filing of a court action Todman filed a domestic

violence complaint against Victor Further exploring this, Victor 5 counsel asked, Isn t it a fact

that you had Mr Victor arrested? ’ Todman explained, ‘ Yes, because the judge put me away from

his bedroom in my own bedroom, and I was in there sleeping and he take a hammer and beat the

door down to come after me, and I call the police, and them arrest him arrested him 4

Defendant s Exhibit 7 was then shown to Todman; she recognized her name on the document but

nothing else

4 An olfense report of the Virgin Islands Police Department corroborates that the handle to the bedroom door had been destroyed when Victor, despite a restraining order attempted to enter Todman 5 room Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 12 of 57

1|25 Victor was then called as an adverse witness He verified that his signature was on

Defendant 5 Exhibit 1 as a witness Rudolph McCurdy was also called as a witness, and he

testified that he had seen Todman execute the document identified as Defendant 3 Exhibit 1

1126 Victor then testified in his behalf Victor had worked for different contractors and aspired

to own his own property and build a home Upon discussing the purchase with Todman, she

questioned how it was affordable and how the mortgage would be paid Victor asserted that

Todman ultimately opposed the purchase of the property However, Victor also admitted he was

not able to purchase the property on his own As Victor explained, Todman had obtained her

citizenship status prior to him, and he could not obtain a loan while in his naturalization status at

the time Ultimately, after Victor explained the benefit to them in the long term he and Todman

purchased the 278 Property

1127 As to the 290 Property, Victor purchased the property by securing a bank loan based on his

income alone He collected $1,300 a month rent from the two units on that property in which his

family was not living Victor testified that he kept the purchase of 290 a secret from Todman, but

she moved with him and the family from Bovoni to the apartment at 290, at which time he informed

her of the purchase When asked about the decision to move from Bovoni to the 290 Property,

Victor was evasive 5

‘ The following interaction is demonstrative

Counsel for Todman How did you get Miss Todman to agree to move to 290 from Bovoni? Victor We have a child together and I don t think it would have been right for me to put my child Counsel for Todman Excuse me sir, I don’t think you’re answering the question I just ask you, how was it that you got her to move, not what you thought about Victor [don’t know V1010! v Todman 2024 V] l8 8 Ct Civ No 2018 0045 Opinion of the Court Page 13 of 57

1|28 Todman explained that her children, Shane and Thevar, left the family home ‘ because of

Mr Victor how he was When he come home in the evening and night my children had to stand

up and say good night, they cannot sit down to say good night He have a behavior with them, so

they feel uncomfortable my son tell me he going to look for a job and go night and he go school,

Adult Education He get a job ” But by Victor’s testimony, Todman found a home for them

and asked them to move out after the doctor confirmed Thevar 3 pregnancy Victor confirmed he

never contributed any financial assistance to Thevar and Shane when they moved out

1129 As to how household expenses were split for the family, Victor asserted that, when they

were living in Bovoni, he and Todman contributed equally, “She would pay 50 percent and I would

pay 50 percent ” Victor elaborated, Todman “had a home phone that I told her we don t need She

see a need for a home phone so she was paying for the home phone I had a cellphone so I didn’t

Counsel for Todman You don’t know? Did you ask her’ Did you bring it up to her? Victor Yes Counsel for Todman What did you say? Victor She move she said yes Counsel for Todman No What did she say yes to? Victor moving from 256 Estate Bovoni to 290 Hospital Ground Counsel for Todman Did you tell her why you thought it was a good idea to move? Victor No

Counsel for Todman How did you suggest how did you get her to agree to move without telling her anything about the rent or anything like that and she didn t know that it belong to you? Victor I did not get her to agree to move, I told her that we are moving from 256 to 290 She could have come she could have stayed But we had a child together and I think it was the best for my child to go wherever I go, so she came

In an effort to expose Victor 5 self contradiction, Todman s counsel inquired, “Now, when she left in 2008, Daryl your child went with her; isn t that true? ’ and further inquired, “You didn task that Daryl stay with you, didn‘t you? to which Victor answered he had not made any such request, when he explained the court had placed custody with Todman It is noted that, as a matter of public record, in case ST 08 CV 313, submitted as an exhibit, is evidence that in 2008, Victor denied paternity, and Todman had to obtain a paternity test to obtain a child support order to force Victor to support his son VILIOI v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthe Court Page 14 of 57

need a home phone ” Victor was further asked, other than the half of the expenses of the house

do you know what else expenses she had His response was simply, “No However, Victor later

admitted that he did not pay the cable bill for the home, confirming that the “things that she wanted,

which were, for instance, cable and telephone she paid for ” Victor also continued he never

cooked for the family

1|30 Victor fithher testified that sometimes he would join Todman while shopping and pay for

the groceries He stated that there was no standard amount ’ he contributed It depended on what

Todman could have done, since she worked largely on tips Likewise, while he equivocated, he

conceded Todman also “probably” paid the utilities at the 278 Property When Todman did not

earn much income from her work, Victor would then give her money for the family expenses

When asked specifically which children he helped, Victor said his son Daryl and his two nephews,

Jamaine and Jharel Todman was the primary contact for the schools, if anything should happen

to any of the children

1131 Providing more details of the construction process, Victor confirmed that he and one other

person from Guyana built the cistern He also had another cousin from Guyana assist at a later

date Victor readily admitted that Todman cooked for the workers and “from time to time’

transported materials to the construction site, all after transferring her ownership interest in the

278 Property Then one night, Victor came home around 1 I 00 p m by his retelling to be met

by Todman accusing him of being with another woman Victor “just walk [sic] past her ’ and he

“say, well, if you want to hit me just hit me that s all right He then proceeded to the bedroom

and was followed by Todman As Victor explained to Todman at that time, he believe[d] it was

best [Todman] take it It’s best you take the property as it is right now The cistern is now poured

as yet, I think you can manage $238 I gonna move on In contrast to this statement, Victor VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page l5 of 57

admitted he earned significantly more financially through his employment than Todman did

through hers Upon hearing this, Todman began pulling her hair out her head” saying ‘ No Don’t

do that ” Victor tells his response plainly, “I said I gonna leave, you know So I say, well, if you

don’t want me to leave just take your name off of it ” Todman was exclaiming that she had no

idea what to do, so [Victor] say, well, Winston Taylor is our attorney You can go to Winston

Taylor and he I] explain to you what you have to do

1132 Upon cross examination, this subject matter was explored fittther, and Victor expanded

upon the facts explicating that, when Todman expressed distress at the possibility of exclusively

bearing the costs of a family and a mortgage on a property containing nothing more than a cistern,

“1 said, if you are not going to take it take your name off ”

1133 Addressing the 2008 domestic violence matter, Victor explained that he had been working

at “KFC Prior to this incident, Victor ‘used to receive texts on my phone that I have a sexual

transmitted disease and “one night, me and Monica was at Miracle on Main Street As he

was going to use the restroom, he received a text again; the texts ‘ was coming from AT&T

Accordingly, Victor went to AT&T and accessed the self pay kiosk He entered the last four digits

of Todman 5 social security number and discovered that it was registered under Thevar 8 name

Thus, Victor concluded that the texts were coming from Todman He then told Todman that they

both needed to go to the doctor, and then it really fell apart As to Victor’s arrest in 2008, he

gave his recounting On a Friday night, the doctor had called Victor to explain that he was “clean ,

so he put the phone on speaker for Todman to hear But, when it came time to share Todman’s

results, she terminated the call, and Victor never heard her results The next day, Victor went to

the doctor, ‘ and I ask him, how is it you are saying that I clean, and he tap me on my shoulder and

he said, you are blessed V1010) v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 16 of 57

1|34 After this, Victor asked Todman to move out When Todman refilsed, Victor took all of

her clothes out of the closets and dressers and threw them in a pile on the floor Victor asserted

that, in response, Todman called the police and told them Victor had hit her The criminal domestic

violence matter was dismissed, according to Victor, though no court documents were submitted

Regarding the domestic violence matter, ST 08 DV 1 18, Victor explained that an attorney advised

him to file a reciprocal complaint of domestic violence against Todman

1]35 During the pendency of the domestic violence matter, Victor was locked up ’ twice

Ultimately, the family court entered an order that included a mandate that Victor pay child support

and rent for Todman s residence, as he had coerced her to leave, along with his son Regarding

the child support obligation, Victor once went to Guyana and could not return or renew his visa

because he owed approximately $17,000 in child support

1|36 Although Victor explained that the judge had ordered Todman to leave the home and he

pay her rent, Todman’s counsel explored this on cross examination Victor was asked, “when the

judge said that Miss Todman would have to leave the house, that was because you said you wanted

her out and you showed that the title was only in your name, isn’t that correct ” Victor denied this,

though he admitted he was obligated to pay her rent Victor was further asked, “And then Miss

Todman had to go back to the Court because you hadn t paid, I think it was the half of the deposit

and Miss Todman was having to borrow money and things of that sort; isn t that correct ” Victor

retorted, ‘No You looking for a bounce check?’ So Todman’s counsel questioned further, “You

were brought back to court on an order to show cause asking that you pay one half of the deposit

on Miss Todman s new residence; correct? Victor answered, ‘I can t remember that Victor

did concede that Todman first learned that title to the 278 Property was solely in Victor 5 name at

the domestic violence hearing Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthe Court Page 17 of 57 B The Superior Court’s Findings of Fact and Judgment

1137 In support of its final judgment, the court entered certain findings of fact and conclusions

of law It found that Todman and Victor had met in the British Virgin Islands in the early 1990 5

Their relationship became romantic, and though they were never married, they had a son together

in 1995 In 1995, Victor came to St Thomas and arranged for Todman to follow in 1997, at which

time the family lived together until 2008 when the relationship between Todman and Victor ended

During the course of that relationship, Victor was regularly employed as a builder and/or contractor

while Todman worked as a cook and dishwasher Todman attended school in St Vincent and the

Grenadines until the age of 13 and had no further education As a consequence, Todman could

not read, and her writing was limited to signing her name in English Todman’s older children had

assisted her in reading important documents but they had left the family home before 2005 In

contrast, it was found that Victor was literate in English and fully aware that Todman was not

The court specifically found that Victor and Todman had a ‘confidential’ relationship The court

further made the following findings

1138 Upon moving to St Thomas, the parties had lived together in an apartment in Bovoni until

2005 During this time, the rent was divided evenly, and Todman supplied food to the household

and paid the household utilities [t was during this time that Victor found the 278 Property was

for sale and showed it to Todman They then agreed to purchase the property, but Victor could

not obtain financing without Todman cosigning the loan Todman and Victor took title to 278

jointly While Todman was present at the closing on 278, she trusted Victor to handle the real

estate transaction Following the purchase Todman provided the funds to excavate 278 as the

necessary first step to constructing the two story building they intended VILIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 18 of 57 1B9 While at the family home, in 2003, Victor asked Todman to execute what he had

represented to be some papers necessary to obtain a construction loan to begin work at the 278

Property Todman trusted and relied on Victor when she executed the papers at that time

However, the paper Todman signed was a quitclaim deed that conveyed her entire interest in 278

to Victor Todman never intended to transfer her interest in the real property to Victor or to anyone

Victor was one of the two subscribing witnesses to Todman s signature of the deed, which was

recorded on July 19, 2004 Although the deed recites that Todman received consideration, she

never received the specified compensation and never declined any such offer of compensation

1140 Utilizing the 278 Property as security, Victor obtained a construction loan in the amount

of $256,000 in August of 2004 Victor, a contractor by trade, oversaw the construction and

arranged for boarders to live with him and Todman while assisting with the construction at 278

In 2005, the construction loan was converted to a mortgage on 278 During the construction,

Todman, unaware that she had signed away her ownership interest in 278, provided meals for

Victor and the boarders, worked on and assisted with the construction, and purchased and delivered

building materials

1141 During the construction at 278, Victor purchased the 290 Property, and the family moved

there to live Todman did not contribute money to the purchase of 290 and was unaware that 290

had been purchased by Victor and was not so informed until after they had begun living there

This parcel had a mortgage attached to it in the amount of $274 050

'|42 On July 26, 2006, Victor refinanced his loans and consolidated them into one loan secured

by a mortgage on the 278 Property $40,181 48 was disbursed to Victor after prior loans and other

expenses were paid Then, on July 31, 2006, Victor obtained a $50,000 line of credit, secured by

a mortgage on 290 The loan and line of credit were obtained because Victor included rental VICIOI v Todman 2024 VI 18 S Ct Civ N0 2018 0045 Opinion 0fthe Court Page 19 of 57 income from the properties, including the 278 Property, in his overall income, as his personal

income alone would not have qualified him for a loan Todman signed no papers relating to the

financing or purchase of 290

1|43 Following the purchase of 290, the family moved into one of the apartments on that

property, where Todman paid the telephone bill and electric bill and provided food for the entire

household Following completion of construction, the family moved to the 278 Propeny where,

again, Todman paid utilities and purchased food and other essentials for the family home As

previously noted, Victor used monies earned from rent to pay the mortgage on all of the properties

During this time, Victor 3 two nephews lived with the family, and Todman “provided their care

1144 In 2008, there was an incident of domestic violence It was during the course of this matter

that Todman learned 1) that she had signed a deed conveying her interest in the 278 Property to

Victor and 2) that her name was not on the deed to 278 Todman never intended to sign any

instrument conveying her interest in 278 The pay off balance of the mortgage, as of the trial in

May of2016 was $226 641 57

1|4S The trial court then made the following conclusions of law First and foremost, a

confidential relationship existed between Todman and Victor Victor misled Todman into

executing the quitclaim deed by making her believe that her signature was needed for a

construction loan Victor committed fraud when he represented the document to be part of the

application for a bank loan, when it was in actuality a deed conveying her interest in the 278

Property to Victor That deed, though recorded, was void ab initio

1146 The court then made further conclusions of law For example, it concluded that Todman

could not be awarded damages for her claim of unjust enrichment because the property had been

obtained by Victor under fraudulent circumstances, relying on Martm v Martin, 54 V I 379, 396 Victor v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 20 of 57 (V I 2010) Also, the court specifically concluded that the validity of a deed wherein the grantor s

signature is witnessed by the grantee need not be considered, as the deed was deemed void ab

initio on other grounds Further, the court concluded that Todman did not assert a claim for undue

influence, and the court did not find undue influence Ultimately, the court concluded that Victor

holds the 278 Property in constructive trust for Todman, and Todman is entitled to an undivided

one half interest in 278

1147 The Superior Court entered a judgment on February 21, 2018, though the certification of

the order indicates a date of July 6, 2018 In this judgment, it was ordered that Todman held an

undivided one half interest in 278 Hospital Ground and that Victor held the 278 Property in

constructive trust for the benefit of Todman It was further order that Todman’s interest was

subject to her share of the liability on the mortgage in the amount of $226,641 57

[I DISCUSSION

A Jurisdiction

1148 The Superior Court entered the judgment from which Victor appeals on February 21, 2018

Victor filed his notice of appeal on June 15, 2018, and Todman filed her cross notice of appeal on

July 31, 2018 “This Court, being an appellate court, is a court of limited jurisdiction, and must

be satisfied of its own appellate subject matter jurisdiction before it considers the merits of an

appeal WorldFresh Markets LLC v Henry 2019 VI 30 1|14(citing People v R105 S Ct Crim

No 2007 01 12 2008 WL 5605714 at *1 (V I Nov 14 2008) (unpublished) VJ Gov I Hosp &

Healrh Faczlztzes Corp v Gov I of the V1 50 VI 276 279 (V I 2008)) We must first then

determine whether the order from which Victor appeals is a final judgment and whether the notice

and cross notice of appeal were timely, or such objection to timeliness has been waived V I R

APP P 22(m) Peters v Gov I ofthe VI 60 V I 479 48] n 1 (V l 2014) VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Count Page 21 of 57

1|49 The Revised Organic Act of 1954, as amended (‘ ROA”), is the defacio constitution of the

Territory, and the grant of jurisdiction to the courts of the Virgin Islands contained in the RDA

controls over statutes passed by the Virgin Islands Legislature Hodge v Bluebeard 5 Castle Inc ,

62 V I 672 682 (V I 2015) Gov I ofthe V] v Crooke 54 V I 237 247 (V I 2010) Pursuant

to the Revised Organic Act of 1954, [as amended,] this Court has appellate [subject matter]

jurisdiction over ‘all appeals from the decisions of the courts of the Virgin Islands established by

local law In re Petition for Expungemem 66 V I 299 302 (V I 2017) (quoting 48 U S C §

1613a(d)) Within the ROA framework, the Virgin Islands Legislature unquestionably possesses

the authority to determine the jurisdiction of Virgin Islands courts The Legislature has exercised

that authority by adopting the [final judgment rule] and [establishing] a set of permissible

interlocutory appeals as of right ”’6 Therefore, this Court has jurisdiction over all appeals arising

from a Final Judgment of the Superior Court 48 U S C § |6|3a(d)' V I CODE ANN tit 4 § 32(a)

Toussamt v Slew art 67 V I 931 939 (V I 2017)

‘50 The final judgment rule is embodied in title 4, subsections 32(a) and 33(a) of the Virgin

Islands Code, which state that [t]he Supreme Court shall have jurisdiction over all appeals arising

from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided

6 World Fresh Markets 2019 V130 1|15 (quoting Stiles v Yob S Ct Civ No 2016 0027 2016 WL 3211244 at *3 (V I June 8 20l6) (per curiam) (unpublished), and citing 4 V I C §§ 32(3) 33(3), Emletto v Rogers Townsend & Thomas P C 49 V I 31 l 315 V I 2007)) 4 V I C § 32(a)( all appeals arising from final judgments final decrees [and] final orders of the Superior Court ), 4 V I C § 33(a) ( Appealablc judgments and orders shall be available only upon entry of final judgment in the Superior Court ’ ) The jurisdiction of this Court, as set forth in subsections 32(a) and 33(a) of title 4 of the Virgin Islands Code, is a codification of the finality requirement that has been a part of U 3 common (and statutory) law since this country s founding and requires those wishing to challenge a ruling of a lower court to “‘raise all claims of error in a single appeal following final judgment on the merits Emletto, 49 V I at 3l5 (quoting Richardson Metre]! Inc v Kalle! 472 U S 424 429 30 (1985)) see also Joseph v Daily News Publishing Co [m 57 VI 566 578 VI 2012) ( Section 32 embodies the final judgment rule which generally requires a party ‘to raise all claims of error in a single appeal following final judgment on the merits ’ ’(quoting Bryan! v People 53 VI 395 400 (VI 2010)) see generally Bachowskl v User)» 545 F2d 363 368 n 20 (3d Cir 1976) (citing Meicalfe 3 Case 77 Eng Rep [193 (K B 1615) C WRIGHT A MILLER& E COOPER FEDERAL PRACTICL& PROCEDURE CIVIL § 3906 pg 425 26 (1976)) V100! v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion 0fthe Court Page 22 of 57 by law’” and limits the availability of an appeal to ‘only upon entry of final judgment in the

Superior Court from which appeal or application for review is taken ” 4 V 1 C §§ 32(3), 32(b)

“‘A [final judgment] is a judgment from a court which ends the litigation on the merits, leaving

nothing else for the court to do except execute the judgment ”’ Toussamt, 67 V I at 939 (quoting

Ramirez v People 56 V I 409, 416 (V I 2012) (citations omitted)) The entry of a final judgment

implicitly denies all pending motions, and all prior interlocutory orders merge with the final

judgment Toussamt, 67 V I at 940 n 3 (citing Simpson v 8d quIrs ofSapphire Bay Condos

W 61 V1 728 731 (V I 2015) In re Estate ofGeorge 59 V1913 919 (V I 2013))

1151 Here, the record as to the timing of the entry of the judgment and the filing of the notice of

appeal is confusing The findings of fact and conclusions of law bear (1) the judge s signature

with a date of February 21 2018 (2) the signed attestation of the clerk of the court dated February

21, 2018, (3) and the raised seal (photostatically copied) of the clerk of the court certifying its

authenticity dated February 21 2018 While the final judgment also bears both the judge s

signature and the attestation of the clerk of the court dated February 21, 2018 the raised seal

(photostatically copied) bears the date July 6, 2018 ’ Victor 5 notice of appeal was filed June 15,

2018 but states that he received the final judgment on May 16 2018

1152 However, Todman filed a motion for correction ofjudgment on March 15, 2018, seeking

relief pursuant to Rule 60(a) of the Virgin Islands Rules of Civil Procedure, thus having the legal

effect of tolling the time for filing a notice of appeal until 30 days after the determination of such

motion or after such motion has been pending without determination for 120 days V I R App

P 5(a)(4) On July 9, 20 I 8, Todman filed in this Court a motion to dismiss, which was denied on

July 13, 2018 In denying the motion to dismiss this Court noted that pursuant to Rule 5(a)(4) of

the Virgin Islands Rules of Appellate Procedure, the deadline for Victor to seek appeal was tolled Vtclw v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 23 of 57 during the l20 days’ pendency of Todman’s Rule 60(a) motion for correction ofjudgment V I R

APP P 4(a), 5(a)(l) The Superior Court did not deny the motion for conection ofjudgment until

October 24 2018 and the 120 day deadline would have expired on July [3 2018 Todman filed

her notice of appeal, thus cross appealing, on July 31, 2018

1|53 Victor 5 notice of appeal was held in abeyance and remained inoperative until July 13,

2018, the expiration of the [20 day period for the Superior Court to take action V I R APP P

5(a)(4) Therefore, the l4 day deadline for Todman to file her notice of cross appeal commenced

July 14, 2018, and Todman s deadline for filing her notice expired on July 28, 2018, a Saturday

V I R APP P 5(a)(l) (“A notice of appeal filed after the announcement of a judgment or order

but before entry of the judgment or order is treated as filed on the date of and after entry of

judgment ), V I R APP P 5(a)(3) Even extending the time for filing her notice of appeal to the

next business day Todman s deadline for filing her appeal was July 30, 2018 See V I R APP P

16(b)

1154 While Victor’s notice of appeal became operative on July 14, 2018, Todman’s notice of

cross appeal was untimely However, as this Court has repeatedly noted, the deadline set forth for

filing a notice of appeal is a claims processing rule subject to wavier Peters, 60 V I at 481 n 1

As Victor has not pressed this claims processing rule and has failed to do so up and through his

filing of his reply brief, in which he then responds to the merits of Todman’s cross appeal, he has

waived any such objection to the timeliness of Todman’s notice of cross appeal See e g , World

Fresh Markets, 20 I 9 VI 30 1H9 (noting that appellee had waived any claim of mootness for failing

to raise it at the first incident of substantive filing in this Court (citing Hodge, 62 V I at 687 n 8));

People v Rivera 68 V I 393 414 (V I Super Ct 2018) (by responding to the merits of a motion

that may properly be deemed untimely, the responding litigant forfeits any claim of untimeliness) VIC“)! v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthe Court Page 24 of 57

(citing Webster v FirstBank P R 66 V I 514 518 n 2 (V I 2017) and Simpson v Golden 56 V I

272, 281 n 6 (V I 2012)) 7 Therefore, this Court has appellate subject matter jurisdiction over

both Victor’s appeal and Todman’s cross appeal

B Standard of Review

1155 Victor presents three issues for determination First, Victor asks this Court to consider

“whether, the trial court erred in rescinding a deed based on Appellee’s uncorroborated testimony

alone, without evaluating whether Appellee had satisfied her burden of rebutting, by clear and

convincing evidence, the presumption of validity given a certified acknowledgment made pursuant

to 28 V I C § 86? This issue presents certain sub issues for consideration First, what is the

evidentiary effect of an acknowledgement of an instrument transferring an interest in real

property that is, does a properly acknowledged deed give rise to an evidentiary presumption of

its validity? Second, if the deed is presumptively valid (requiring clear and convincing evidence

to overcome such presumption), did Todman’s evidence overcome such presumption and support

the conclusion that the deed was invalid as procured by fraud in the inducement? These sub

issues are questions of law over which this Court exercises plenary review, considering each de

novo Bradfordv Cramer 54 VI 669 672 (VI 2012)

1|56 Taking the issues presented out of order, Victor, in his third issue presented on appeal,

attacks the trial court 5 conclusion that Todman reasonably relied upon Victor in finding that

7 Cf Plosser v Public Serv s Comm n, 56 V1 391 403 n 9 (V1 2012) ( Where a party timely raises a claims processing rule that was violated by its opponent, we have no choice but to dismiss based on it " (citing Gov I 0fthe VI v MaIIme 620 F 3d 321 328 29 (3d Cir 2010)))' see generally Pennv Mosley 67 V I 879 891 n 4 (V l 2017) (discussing the distinctions between a judgment, order, and decree); Miller v 50/ enson, 67 V I 861, 871 (V 1 2017) (discussing the distinctions between a judgment and decree); Clone: v Chaput, 68 V I 682, 688 (V 1 2016) (quoting In N: Estate ofGeorge 59 VI at 919)’ Prone; v Praise! 33 VI 32 40 (VI Super Ct 1995) (Noting that with the procedural merger of law and equity in the federal and most state [and territorial] courts under the Rules of Civil Procedure, the term judgment has generally replaced decree (quoting BLACK 8 L Dl(T 410 (6th ed 1990) citing 16 VIC §§ 108 110 111 46AM JUR ZDJudgmenIs§2(1969)) Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthc Coun Page 25 of 57

Todman was fraudulently induced into executing the quitclaim deed (e g , “The key inquiry here

is whether Todman’s reliance on Victor’s alleged misrepresentation was reasonable under the

circumstances ), arguing in his appellate briefing that

it was unreasonable for Todman to rely on Victor 3 alleged misrepresentation, given the stormy nature of their relationship, the importance of the information presented to her, and the fact that her two teenage children, who she relied on routinely to have documents read to her, were only a few feet way

Victor ultimately argues that the trial court abused its discretion in determining that Todman s

actions were reasonable

1|57 As the actual determination of whether a person’s conduct was reasonable under the

circumstances presented (as opposed to making that same determination as a matter of law) is a

question of application of law to fact, it is subject to review for abuse of discretion See Miller v

Sorenson, 57 V1 861, 868 (VI 2017) ( The Superior Court 3 application of law to fact is

reviewed for abuse of discretion (citing lelu v People 57 VI 455 461 62 (VI 2012))) The

underlying factual predicates composing the facts to which the trial court applied the law are

subject to clear error review like any other factual determination of the trial court more

succinctly, the judgment will be reversed if findings of fact material to the issues presented are

clearly erroneous Cornelius v Bank of Nova Scotla, 67 V1 806, 816 (VI 2017) (citing

Rodriguez 58 VI at 371' Rivera Moreno v Gov I ofthe VI 61 VI 379 302 03 (V1 2014)

Blyden, 53 V I at 646)) Yet, Victor is correct that the determination of whether, as a matter of

law, the facts taken in the light most favorable to the judgment of the finder of fact do (or do not) Vidal v Todman 2024 V1 18 S Ct Civ N0 2018 0045 Opinion of the Court Page 26 of 57

make Todman’s conduct unreasonable is a legal question to which we owe no deference to the

trial court and is subject to plenary, de nova, review Bradford, 54 V I at 672 8

1|58 Victor further argues that the award to Todman of a one half undivided interest in the 278

Property was an abuse of discretion because the trial court did not consider the relative value of

Todman 8 contributions to the 278 Property v15 a v15 Victor 3 On this point, Todman cross

appeals, arguing that the trial court erred in determining that Todman’s one half undivided interest

in the 278 Property is burdened by the entire balance of the mortgage secured by the 278 Property

To the extent the trial court’s final judgment is based on findings of fact, it will only be overturned

if clearly erroneous, i e , there is clear error Cornelius, 67 V I at 816 (citing Rodriguez, 58 V I

at 371‘ Rivera Moreno 61 V I at 302 03' Blya'en 53 VI at 646) However to the extent the facts

as found by the Superior Court are not clearly erroneous, its equitable division of the property will

be reviewed only for abuse of discretion Browne v Stanley 66 V I 328, 331 (V I 2017) (citing

V I Waste Mgmt Auth v Bovom Invs LLC 61 V I 355 363 (V I 2014)‘ S! Thomas St Bd of

Elections v Dame], 49 V I 322, 329 30 (V I 2007)) An abuse of discretion occurs when a trial

court 5 ruling rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an

improper application of law to fact Smith v Henley 67 VI 965 978 (VI 2017) (quoting

Stevens v People 55 V I 550 556 (V I 2011))

" See also Kenda Com Inc v P0! 0 Gold Money Leagues Inc 329 F 3d 216 225 (lst Cir 2003) (noting that upon review, the court will “draw ‘all reasonable inferences in favor of the prevailing party, and will affirm unless the evidence was so strongly and overwhelmingly inconsistent with the verdicts that no reasonable jury could have returned them (quoting Walton v Nalco Chem Co 272 F 3d 12 23 (lst Cir 2001)» Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 27 of 57

C Evidentiary Sufficiency to Prove by Clear and Convincing Evidence that Victor Fraudulently Induced Todman to Execute the Grant of Land, Rendering the Quitclaim Deed Void Ab Initio

1|59 The first questions to be answered are whether the recording of a duly acknowledged deed

creates an evidentiary presumption as to the deed s validity and whether the evidence presented in

this case overcame that presumption by the required standard of clear and convincing evidence 9

To this end, the statutory text provides guidance

1 A Duly Acknowledged and Recorded Deed Gives Rise to a Presumption of Validity that the Challenging Party Must Overcome by Clear and Convincing Evidence

1160 Government officials, including the courts, must accept the certification of the

acknowledgement of a deed if, Inter aha, either the certification is in a form prescribed under

Virgin Islands law or the certification contains words importing a meaning equivalent to stating

acknowledged before me 28 V I C § 85(3) (0) '0 The fact that the Legislature chose to deny

to those conducting their affairs within the territorial limitsll of the Virgin Islands the discretion

9 The issue of the presumption of the validity of the deed was originally waived, as it was never raised before the trial court However Todman waived this waiver by arguing against such a presumption in her appellate brief, thereby placing the issue properly before this Court '0 The Virgin Islands Legislature has, in section 85 of Title 28, provided the following obligation regarding acknowledgments

The acknowledgement used shall be accepted in the Virgin Islands if one of the following is true (a) The certificate is in a form prescribed by the laws or regulations of the Virgin Islands or (c) The cenificate contains the words ‘acknowledged before me , or their substantial equivalent

28 v I c §85(a) (c) " Virgin Islands,” when used in the Code, indicates “in a geographical sense, the same territorial domain designated in section 2(8) ofthe [ROA] I V I C § 4! see also 48 U S C § [405 I V I C § 2 (providing that the Code is applicable throughout the Virgin Islands) Territorial jurisdiction is the “territory over which a government one of its courts, or one of its subdivisions has jurisdiction BLACK S L DICT at 871 see also Id at 869 (defining ‘legislative jurisdiction” as ‘ a legislature 5 general sphere of authority to enact laws and conduct all business related to that authority, such as holding hearings ) id (defining “judicial jurisdiction as ‘the legal power Vidal v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 28 of 57

and choice of whether to accept or reject any acknowledgement under the foregoing conditions is

an indication that such acknowledged instruments are presumptively valid If the Legislature

wished in every instance to leave the determination of the validity of a grant of land to be litigated

in court with both parties free to marshal whatever evidence they respectively find appropriate,

such a provision would be entirely unnecessary

1|6l Indeed, if the Legislature intended an evidentiary contentious dispute when a person

wished to challenge the validity of a deed section 85 of title 28 achieves the exact opposite result

Section 85 demands that, when the dictates of the law governing execution and acknowledgement

of instruments of transfer have been complied with, all those subject to the laws of the Virgin

Islands must accept the acknowledgment as valid Buttressing this position, the Legislature did

not limit the application of section 85 to officials of the executive branch, or even government

officials generally, and instead, chose to make acceptance mandatory upon all persons

1162 This conclusion that a duly acknowledged deed is presumptively valid is bolstered by the

provisions of section 86 of title 28 defining what it means when it is declared that an instrument

of transfer was “acknowledged before me ”'2 This acknowledgement, in the context of the

and authority of a court to make a decision that binds the parties to any matter properly brought before it ”) see generally Rose v Htmley 8 U S (4 Cranch) 241 279 (1808) ( It is conceded that the legislation of every country is territorial; that beyond its own territory it can only affect its own subjects or citizens It is not easy to conceive a power to execute a municipal law or to enforce obedience to that law without the circle in which that law operates A power to seize for the infraction of a law is derived from the sovereign, and must be exercised it would seem, within those limits which circumscribe the sovereign power The rights of war may be exercised on the high seas, because war is carried on upon the high seas but the pacific rights of sovereignty must be exercised within the territory of the sovereign ) UnitedStares v Bevans, 16 U S (3 Wheat ) 336, 386 87 (1818)( What then is the extent of [the judicial] Jurisdiction which a state possesses? We answer Without hesitation the [ludicial] jurisdiction of a state is coextensive with its territory coextensive with its legislative power ) see e g 4 V I C § 82(a) ( The process of the Superior Court runs throughout the territory ) Norman 3 10 V I 495 503 n 7 (D V I 1974) ( By providing that the process of the [court] shall run throughout the Virgin Islands [the Legislature] was merely stating that although there were three major islands and many smaller islands, islets, and cays service could be made on any one of the islands, islets, and cays within two definedjurisdictional divisions ‘) " While Todman attempts to distinguish Butler v Encyclopedia Brittamca Inc 41 F 3d 285 293 294 (7th Cir 1994) this distinction fails The portion quoted by Todman begins from the premise that a notary does not attest to the Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 29 of 57

execution of a quitclaim deed, is an affinnative statement that the grantor acknowledges executing

the deed for the purposes stated therein, i e , for the purpose of transferring the grantor 3 interest

in the real property to the grantee Likewise, subsection 777(c) of title 3 mandates that a notary,

when acknowledging a deed pursuant to subsection (a) of section 777, must ‘ inquire of each person

executing a document as to the truth and authenticity of such document 3 V I C § 777(c) This

mandatory duty placed upon notaries public is a further indication that a duly acknowledged deed

is presumptively valid, for such an inquiry is entirely unnecessary if the deed’s validity is

questionable upon entering the court

1163 Additionally, Virgin Islands law demands clear and convincing evidence to justify a court’s

determination that a duly acknowledged and recorded deed was fraudulently obtained, further

indicating that an instrument containing an acknowledgment valid on its face is presumptively

valid until overcome by opposing evidence Wilkmson v Wilkinson, 70 V I 90l, 915 [9 (V I

2019) As such, a duly acknowledged and recorded deed is presumptively valid requiring clear

and convincing evidence to establish the deed’s invalidity As this acknowledgment is valid, as

determined in the above analysis, all those in the Virgin Islands were under an obligation to accept

what is legally meant by such an acknowledgement Of course determining such presumptive

validity of a duly acknowledged quitclaim deed does not answer the question of whether the

evidence overcame such a presumption

fi|64 Therefore, we are presented with two questions (1) whether the trial court’s conclusion

that the deed was procured by fraud in the inducement was correct as a matter of law (or,

validity of the statements made in the instrument However, subsection 86(3)(i) of title 28 dictates that such a certification in the Virgin Islands is a certification that the person signing the instrument did so ‘for the purposes stated therein Obviously, we must apply Virgin Islands statutory law when it is in direct conflict of case law from other jurisdictions V1010! v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 30 of 57

conversely, was Todman’s failure to obtain the assistance of a third party in order to understand

the deed she had signed, under the circumstances of this case, unreasonable, thus making any

finding of fraud in the inducement unwarranted as a matter of law) and (2) whether the proof

offered in the present record overcame such a presumption by clear and convincing evidence

Certainly, if the question were simply whether the evidence preponderating in favor of the

determination of the conclusions of the finder of fact was sufficient to support a conclusion of

fraud in the inducement, there would be no dispute

1165 The evidence in the record provided an eminently reasonable factual basis supporting the

Superior Court’s conclusion that Todman was fraudulently induced to sign the quitclaim deed

when Victor, knowing her inability to read, presented her with a document represented to be a loan

application at a time and under such circumstances that, in light of their long and turbulent

relationship, would exert undue pressure on Todman to execute the document without questioning

Victor 5 motives However, simply because evidence rises to the level of a preponderance in favor

of one party does not answer the question of whether that same evidence was so strong that it rose

to such a level that it was clear and convincing proof

1166 In order to satisfy the clear and convincing evidence standard of proof, a party must present

“‘evidence indicating that the thing to be proved is highly probable or reasonably certain’,” i e ,

‘ ‘evidence showing a high probability of truth of the factual matter at issue’ Browne, 50 V I at

265 (quoting In re Laxton 647 N W 2d 784 795 (Wis 2002) BLACK 3 LAW DICTIONARY 596

(8th ed 2004) MERRIAM WEBSTER s DICT OF LAW 172 (Collector ed 2005)) A grant of an

interest in land by deed is a contract Dartmouth College v Woodward, 17 U S (4 Wheat) 518,

590 & n 11 (1819) (noting that a grant of land is a contract that is no longer executory but is VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthe Court Page 31 of 57

instead, executed) '3 Proof of fraud in the inducement to a contract requires that (1) there was

a misrepresentation, (2) the misrepresentation was fraudulent or material, (3) the misrepresentation

induced the recipient to enter the contract, and (4) that the recipient’s reliance on the

misrepresentation was reasonable ” Wilkinson, 70 V I at 914 '4

1167 A misrepresentation is an assertion that is not in accord with the facts Id (quoting

Lempert v Singer, 26 V I 326, 338 (D V I 1991)) A ‘ misrepresentation is fraudulent where the

maker ‘intends his assertion to induce a party to manifest his assent and the maker (a) knows or

believes that the assertion is not in accord with the facts, or (b) does not have the confidence that

he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that

he states or impIies for the assertion ” 1d (citing Pollara v Chateau St Crozx LLC, 58 V I 455,

"See also Fletcher v Peck 10 U S (6 Cranch) 87, 136 (1810) ( A contract is a compact between two or more panics and is either executory or executed An executory contract is one in which a party binds himself to do or not to do a particular thing A contract executed is one in which the object of the contract is performed and this differs in nothing from a grant A contract executed, as well as one which is executory, contains obligations binding on the parties A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right A party is, therefore, always estopped by his own grant ‘ (citing Blackstone»; BLACK’S L DICT at 719 (defining grant as the formal transfer of real property”); Id ( An agreement that creates a right of any description other than the one held by the grantor Exampies include leases, easements, charges, patents, franchises, powers, and licenses , ‘ The document by which a transfer is effected; esp , Deed ’; The property or property right so transferred ) "‘ Despite this Court 5 express acknowledgement in Penn, 67 V I 879 a full six months and ten days prior to the issuance of the final Judgment in this matter that the elements of fraud in the inducement arising from a confidential relationship had never been adopted in conformance with the standards set forth in Banks v International Rental & Leasmg C01]; 55 VI 967 (VI 2011) and Gov (0fthe VI v Carma; 60V] 597 (VI 2014) (3 Banks Analysis ) subsequent to the final judgment in this matter, this Court has adopted the common law elements of fraud in the inducement E g , WIlklnson, 70 V I 901 see Sunshine Shopping Center Inc v LG Electronics Panama S A , Case No 2015 0041 2018 WL 4558982 at *8 (D V 1 Sept 21 2018) (unpublished) (noting that exploitation of a confidential relationship to fraudulently induce a party to that reiationship to unknowingly execute a quitclaim deed transferring ownership sounds in fraudulent inducement (citing Ross, 58 V I at 313)) So, while the failure to conduct a Banks Analysis is error per se requiring no analysis from this Court to justify immediate reversal and remand to the Superior Court to do its job, see e g , Cornelius, 67 V I at 825 (failure to conduct a Banks Analysis grounds for summary reversal) Perm, 67 V I at n 7; Toussamt, 67 V I at 952, such actions now would be a waste of judicial resources See e g , Innis: v Inmss, 65 V I 270, 279 11 7 (V 1 2016) (conducting a Banks Analysis in the first instance on appeal to avoid waste of judicial resources and further burdening parties in matters of domestic relations) The Wilkinson opinion was issued on March 26, 2019, and Appellant s brief was fiIed April 2, 2019 We acknowledge that this is a short time, but this Court 5 opinions are available electronically on its website, usually within 24 to 48 hours of the issuance of an opinion While counsel does not appear to have acted in bad faith, we remind counsel to regularly check the court s website for new opinions and to conduct an update review of their research prior to filing Diligence in verifying authorities saves time and resources Viola! v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthe Court Page 32 of 57 471 (V I 2013)) A misrepresentation is material if it would be likely to induce a reasonable

person to manifest his assent, or if the maker knows that it would be likely to induce the recipient

to do so ’ Id (quoting RESTATEMENT (SECOND) OF CONTRACTS § 162(2))

1168 In regard to whether Todman’s evidence of fraud in the inducement of the contract for a

grant of an interest in land was clear and convincing such that it overcame the presumptive validity

of a deed duly acknowledged and recorded in accordance with Virgin Islands law, there is no

doubt It is difficult to presume how a party could bring further evidence to bear on fraudulent

inducement to a contract While Todman s testimony provided a minimum evidentiary factual

record, in nearly all material respects Todman’s testimony was corroborated by other evidence,

often in multiple instances and quite often by Victor’s own testimony Cf Greer v People, 2021

VI 7, 1141 ( [E]vidence is not insufficient because testimony from witnesses may be contradictory

or evidence may be in conflict, which, in reality, means that the finder of fact must have made a

credibility determination and weighed the evidence presented ” (citing Marcelle v People, 55 V I

536 547 (V I 2011)‘ Smith v People 51 V I 396 401 (V I 2009»)

1169 Victor 3 testimony establishes that he and Todman met in 1993 and began an intimate

relationship, holding themselves out to the public as an unmarried family unit (and as unmarried

spouses ’) ultimately having one child together In 1997, the family moved to St Thomas, where

Victor had been working in construction He took Todman to the 278 Property, and after

explaining the financial benefits of buying the property and developing it, they decided to purchase

the property together Indeed, Victor admits he could not have obtained the loan for the purchase

had Todman not co signed for it

1[70 Within four months of purchasing the property, construction began While the construction

was on going, Todman cooked and otherwise provided food for Victor and the construction Viola; v Todman 2024 VI 18 S Ct Ci» No 20i8 0045 Opinion ofthe Court Page 33 of 57 workers, as well as the family Victor candidly admitted he never cooked for the family during

their relationship Victor never provided any financial support for either of Todman 3 children,

Thevar or Shane When the family was renting Victor and Todman split the rent payments

equally Todman also paid the household expenses for the home food, phone, water, and cable

tv, while Victor paid for his own cell phone since he considered the phone and cable expenses for

the family home to be unnecessary Additionally, Victor’s contribution to supporting his family

was only ever contributed when Todman could not cover the entire costs through her wages As

he explained, there was no standard amount” provided and he only stepped in when Todman 3

earnings from tipped wages fell short He also confirmed that his two stepchildren, his two

nephews and his son with Todman all lived in their family home Todman was the primary

parental contact for the children and helped with their homework

{I71 Victor also confirmed much of the testimony of Laurie Laurie had lived with the family

and helped with the construction Victor had assisted Laurie in coming from Guyana Like Laurie,

Victor testified that Todman transported materials to the construction site both before and after the

execution of the quitclaim deed Laurie had known Todman and Victor to be husband and wife

when he knew the couple in Tortola After Laurie had returned to Guyana, Victor had visited and

shown him the building plans for the 278 Property On the plans both Victor and Todman were

listed as the owners When Laurie had questioned Victor about Todman, Victor explicated they

were in an intimate relationship with Victor referring to Todman as “my girl ”

1172 Laurie never saw Victor purchase or provide food for the workers, of which there were

four at the time, but Todman did so regularly, even at night and on weekends Indeed, Laurie had

never seen Victor go to the grocery store Todman paid the phone, gas, and electrical bills

Likewise, Todman used her vehicle to transport workers and materials to the construction site Victor v Todman 2024 VI 18 S Ct Civ No 20l8 0045 Opinion of the Court Page 34 of 57

Additionally, Todman worked at the site helping with construction generally and cleaning up at

the end of the day Laurie emphasized that Todman ‘ worked tirelessly like a horse ”

1173 Christian also confirmed that Todman and Victor were in a romantic relationship '5 He

further confirmed that Todman was involved with the construction at the 278 Property and would

bring food to the work site, in addition to transporting building materials and helping at the

construction site Also, Thevar, Todman 5 daughter, testified that she and her brother had regularly

read their mother s correspondence and assisted with other reading when they lived in the family

home Thevar had never observed her mother reading a newspaper

1174 The bank officer testified that the quitclaim deed was provided to the bank and recorded as

part of Victor’s application for financing Victor, when called as an adverse witness in Todman’s

case, confirmed that Rudolph McCurdy was one witness to Todman s signature on the deed, and

Victor, the grantee himself, was the other witness who had signed his name as having witnessed

Todman s execution of the deed

1175 Finally, Laurie testified that Victor admitted his entire plan to defraud Todman of her

interest in the 278 Property by fraudulently inducing her to execute the quitclaim deed Laurie

explained that he had seen the building plans for 278 on one of Victor 5 prior visits to Guyana and

had been told by Victor that Todman was Victor 5 significant other On a subsequent visit, Victor

confirmed to Laurie that he had informed Todman that her signature was needed to obtain a loan

from the bank, but what he had actually given her to execute was a deed transferring to him (Victor)

her interest in 278

'5 See State v Carswell, 87] N E 2d 547 553 (Ohio 2007) ( The essential elements of cohabitation are (1) sharing of familial or financial responsibilities and (2) consortium) ‘ ‘Factors that might establish consortium include mutual respect, fidelity affection, society, cooperation, solace, comfort, aid of each other, friendship and conjugal relations [l]t is a person s determination to share some measure of life 5 responsibilities with another that creates cohabitation (quoting State v Williams 683 N E 2d 1126 (Ohio 1997))) VICIOI v Todman 2024 VI [8 S Ct Civ No 2018 0045 Opinion ofthe Court Page 35 of57 $76 This evidence supports the trial court’s findings of fact 1 IO and 14, which were findings

regarding the parties backgrounds Additionally, the trial court found that Victor took Todman

to the 278 Property and afterward they chose to buy it together, which finding, no 15, is supported

by the evidence Finding l6, Victor’s credit was not sufficient to obtain a loan, but Todman’s

credit allowed the couple to obtain bank financing and they purchased No 278 and Todman

and Victor took title to that property ”, is also supported by the evidence Similarly, the court

found that Todman attended the closing for 278 Likewise finding 19 In 2003, Victor

approached Todman at home and asked her to sign papers so they could apply to the bank for a

construction loan for No 278 ’ is supported by the evidence These examples sufficiently

demonstrate the nature of the findings supported by the evidence

177 As to the details of the fraud itself, Todman testified that having already obtained a loan

for the purchase of the 278 Property and taken title jointly (Todman having attended the closing

for the purchase of this property), Victor told Todman that he had obtained a loan for the

construction of the building on the property but needed Todman s signature on certain documents

in order to finalize the matter with the bank The Superior Court could reasonably credit Todman s

testimony that one day, while she was mopping the bedroom floor, Victor came to her with a

document and explained that, in order to obtain a loan for construction on 278, her signature was

needed The Superior Court could also reasonably credit Todman s testimony that Victor told her

that her presence at the closing for this new construction loan was unnecessary, as she had attended

the closing for the purchase loan and executed all the documents needed then

‘78 Victor misrepresented both the nature of the document to be signed and the lack of a need

for Todman 3 presence at the closing for the construction loan As the document was a deed

transferring Todman 3 interest, and not a loan application or other document involving finances, Hum | Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 36 of 57

this representation was both fraudulent and material Furthermore, Todman expressly testified that

she would never have executed the document had she been told she was giving Victor her entire

interest in the 278 Property, establishing her reliance Additionally, given the value of the property

involved, it is reasonable to conclude that nobody would have given away their interest in such

real property without substantial compensation, thus allowing the inference that the representation

that the document was other than a quitclaim deed was material to Todman’s inducement to the

contract

1|79 The foregoing was certainly substantial testimony from which a finder of fact could

conclude that Todman was fraudulently induced into executing the quitclaim deed, thus rendering

the deed void ab initio, and this evidence established the first three elements of fraud in the

inducement by clear and convincing evidence See WllkInSOI’I 70 V I at 921 22 (noting that fraud

is rarely susceptible to direct proof and explaining that, [i]n a case such as this, where proof is

based upon the cumulative probative value of various discrete pieces of circumstantial evidence,

it is critically important to clearly examine any and all evidence presented, and ultimately

concluding that the facts presented were sufficient to raise the issue and remanding for

determination of fact in the first instance (citing Wessmger v Wessmger, 56 V 1 481 488 89 (V 1

2012))) The above brings us to the core substance of Victor 8 appeal, Victor fervently entreats

the Court to find that Todman s reliance upon Victor at the time of the execution of the quitclaim

deed was unreasonable as a matter of law thus requiring reversal of the Superior Court’s judgment

2 Because There was Testimony and Documentary Evidence Corroborating Todman’s Testimony, and the Superior Court, as Finder of Fact, was Responsible for All Credibility Determinations, Todman Established a Claim of Fraud in the Inducement to the Execution of the Quitclaim Deed, and, as a Matter of Law, Todman’s Reliance and Trust in Victor was Reasonable VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 37 of 57

1|80 As to the element of reasonable reliance, there are two possible courses this Court could

take in addressing this issue in the context presented First, we could adopt a different cause of

action requiring a plaintiff to plead and prove a “confidential relationship” resulting in the

dominant party in that relationship obtaining something of value by exploitation of that

relationship, including fraudulent inducement of a contract '6 Alternatively, we could consider the

principles of law underlying the exploitation of a confidential relationship and apply them to the

element of “reasonable reliance ’ as factors relevant to be considered in determining whether a

claim of fraud in the inducement to the execution of a contract has been established by clear and

convincing evidence

1181 It is noteworthy that “fraud in the inducement can serve as both a basis for tort liability and

as grounds for rescinding a contract,” and the test to be applied in the case [ofa claim of fraudulent

inducement to a contract] to determine whether a [party] is to be relieved of [their] contract by

reason of any alleged fraudulent misrepresentation is the same as that applied in action of tort for

deceit ‘7 Kenda Corp Inc v P0t0 GoldMoneyLeagues Inc 329 F 3d 216 224(lstCir 2003)

'6 This would result in thcjudgment being reversed for the Superior Court’s failure to conduct multiple Banks Analyses and because the Superior Coun granted an unavailable remedy (imposition of a constructive trust) for Todman‘s successful claim of fraud in the inducement to a contract, a clear abuse of discretion and an obvious legal error

'7 Historically, fraud in the inducement of a contract was a claim that a contract is void founded in law with the remedy being rescission of the void fraudulent contract placing the parties in the same position they were in prior to the fraudulent inducement (and entitling the injured party to relief such as ordering the guilty part to execute a quitclaim deed transferring title back to the injured party and further ordering the guilty party to record that deed and bear all such associates costs) In contrast, an equitable claim of unjust enrichment arising from the exploitation of a confidential relationship gave rise to constructive trust Given the merger of law and equity over a century ago, it is questionable if these remain two separate causes of action See Walters, 58 V I at 404 ( It is a well known fact that the distinction between courts of law and courts of equity have long been abolished, and that actions in law and actions in equity have been merged into one form of action the civil action (quoting Three Keys Ltd v SR Utility Holding Co 540 F3d 220 229n9(3d Cir 2008») Greenbergv Tomlin 816 F Supp 1039 1052 (ED Pa 1993)( When a contract is induced by fraud the injured party has a choice of alternate remedies he may either rescind the contract or affirm it and maintain an action in deceit for damages ) It would seem that, under the current state of the law and given this Court‘s holdings in Banks and Connor, such a claim in reality only sounds in fraudulent inducement to a contract giving rising to both remedies at law and equitable remedies Emphatically, the whole tendency of our VICIOI‘ v Todman 2024 V1 18 S Ct Civ N0 2018 0045 Opinion of the Court Page 38 of 57

(citing Demon v Urley 86 N W 2d 537 541 42 (Mich 1957)‘ Yorke v Taylor 124 N E 2d 912

914 15 (Mass 1955) W PAGE KEATON PROSSER & KEATON ON Toms § 105 (5th ed 1984))

Harris v Delco Prods , 25 N E 2d 740, 742 (Mass 1940) And, a grant of an interest in land by

deed is a contract Dartmouth College 17 U S (4 Wheat ) at 590 & n l 1 Additionally the trial

court expressly rejected Todman’s tort claim and disposed of this matter on the basis of fraudulent

inducement to a contract As result of this procedural history considered in light of the substantive

law, Todman’s claim of fraud in the inducement sounded in contract, and the proper remedy was

restoration of the parties to their legal positions prior to the execution (and recording) of the void

deed generally accomplished by ordering the offending party to record a corrective deed and

bear all costs of such execution and recording See Kenda Corp 329 F 3d at 225 (noting that

after rescission, no contract exists, and the parties are restored to the same position they would

have been in but for the fraudulent inducement)

1|82 In contrast, the remedy of imposition of a constructive trust would generally not be legally

justified under the circumstances of this case because that remedy is awarded as relief based upon

a finding of unjust enrichment E g , Francozs 599 F 2d at 1291 Finally, the parties can be

restored to their positions as ofjust prior to the execution of the fraudulently obtained deed, thus

decisions is to require a plaintiff to try [their] whole cause of action and [their] whole case at one time [A party] cannot even split up c1aim[s] and, a fortiori, [a party] cannot divide the grounds of recovery United States v Calgforma & Ole Land Co 192 U S 355 358 (1904) (citing Trask v Ha;ford& New Have R R Co 84 Mass 331 (Mass 1861)’ FeIIeI v Beale (1701) 91 ER 1 122 Freeman Law of1udgments §§ 238 241 (4th ed 1898)) Aplaintiff is ‘bound then to bring forward all grounds that it ha[s] for declaring [relief], and when the [relief is finally adjudged], [i]s barred as to all by the decree California & Ore Land Co , 192 U S at 358 59 (citing Blenwlle Water Suppl} Co v Mobile 186U S 212 216(1902) Wellemv NewOIleans 177U S 390(1900) Hoseasonv Keegen 59N E 627 (Mass 1901) Sayels v Auditor Genelal 82 NW 1045 (Mich 1900) WIIdInan v Wildman 41 A 1 (Conn 1898)“ Foster v Hmson 39 N W 682 (Iowa 1888) Slatev Blown 1 A 54 (Md 1885) Boydv Boyd 65 N Y S 859 (NY App Div 1900) Shaflerv Scuddy 14 La Ann 576 (La 1859) Hendersonv Henderson (1843) 67 ER313 1 15) This is an issue to be addressed by thejudges of the Superior Court in cases of first instance and as the Superior Court expressly disclaimed that its judgment was based upon a claim of unjust enrichment we address only the question of proof of reasonable reliance for a claim of fraudulent inducement to the execution of a contract Victor v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion of the Court Page 39 0f 57

eliminating any need for an award of damages See V.l Port Aulh v Callwood, 2014 WL 905816

(VI Super Ct 2014) (noting that rescission would be inappropriate if the parties could not be

restored to their prior positions) Therefore, the better course in matters involving a claim of fraud

in the inducement to the execution a deed is to consider the circumstances of the parties

relationship in determining whether such reliance is reasonable '3 Importantly, whether the

agreement is express ‘ or implied is of no legal consequence The only difference is the nature of

the proof of the agreement Parties entering this type of relationship usually do not record their

understanding in specific legalese Rather, as here, the terms of their agreement are to be found in

their respective versions of the agreement, and their acts and conduct in light of the subject matter

and the surrounding circumstances ” Kozlowskz v Kozlowskt, 403 A 2d 902, 906 (NJ 1979)

(citing Martin v Campanaro 156 F 2d 127 129 (2d Cir 1946) St Paul FIre Co v Indemnity

Ins Co ofNA 148 A 2d 825 (N J 1960) West CaldM ell v Caldwell 138 A 2d 402 (N J 1958)’

l SAMUEL WILLISTON, THE LAW OF CONTRACTS § 3, at 8 12 (3d ed 1957); l ARTHUR L CORBIN,

CONTRACTS § 18 at 39 43 (1963)) '9

1183 Ultimately, reasonable reliance is a fact intensive inquiry requiring a court to consider the

historic relationship of the parties, the reliance of one party upon the other, the relative business

capacities of the parties (or lack of such capacity), the readiness of one party to follow the other 3

'3 This also appears to be what the Superior Court did in substance, although its conclusions of law are somewhat unclear Rivem Moreno 61 V 1 at 312 ( [T]he substance and function of a Superior Court order controls over the form (citing InIeDIue 57V! 517 527 28 (VI 2012)» see Balbom v Ranger Am oflhe VI Inc 70V1 1048 1055 n 4 (V l 2019) (noting that it is the content and substance that controls over the form or title (citing Hughley v Gov I oflhe VI 61 VI 323 333 (V1 2014)“ Island Tile & Malble LLC v Bemand 57 V1 596 611 12 (V1 2012)))' Harlan F Stone The Common Law oflhe United States 50 HARv L REV 4 10 (1936) ( If our appraisals are mechanical and superficial, the law which they generate will likewise be mechanical and superficial, to become at last but a dry and sterile fomalism ’)

l9See also Kmmson v Kmmson, 627 P 2d 594, 598 (Wyo 1981) (Rooney, J ,dissenting)( An implied in fact contract is a true contract in which the agreement is expressed by conduct rather than by words ” (citations omitted» V1610! v Todman 2024 VI I8 5 Ct Civ No 20l8 0045 Opinion of the Court Page 40 of 57

guidance in complicated transactions, etc Malpere v Miraftabz Revocable 2004 Trust, 426 F

Supp 123 134 (D V1 App Div 2019) (quoting Ross 58 VI at 302 06) cf Estate ofSkepple v

Bank of N S , 69 VI 700, 739 (VI 2018) (explaining that due or reasonable diligence is a

mutable concept that varies according to the facts and derives its form from both context and by

comparison to other standards such as excusable neglect” (citing authorities» Therefore, as a

matter of factual determination, consideration of factors used to determine whether an intimate

relationship has been exploited are relevant to a determination of reasonable reliance and include

the unfairness of the resulting bargain, the unavailability of independent advice, and the

susceptibility of the person persuaded Malpere 426 F Supp at 134 (quoting Ross 58 V I at 302

06)

1184 This conclusion is further validated by consideration of our holding in Wilkinson that, if

a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation

by the other party upon which the recipient is justified in relying, the contract is voidable by the

recipient,” a rule that would require consideration of the nature of the parties’ relationship 70 V I

at 908 09 (quoting RESTATEMENT (SECOND) or CONTRA( TS § 164 (I981) and citing Lempert 26

VI at 342 Cormorv Connor 65 VI 3 3 4(V I Super Ct 2011) Colonv Gremer Dev C0 28

V I 83 87 (V I Super Ct 1993) Jackson v Smith 19 V I 361 365 68 (V 1 Super Ct 1983)

Homer v Lorzllard 6 V I 645 652 (V I Super Ct 1968) Castolema v Crafa No ST 13 CV

243 2014 WL 239427 at *6 (VI Super Ct Jan 15 2014) (unpublished)) 20

"I Wfootnote 2 in Wilkinson, we rejected two cases that had conflated the elements of the common law tort of fraud with the elements of a claim for fraud in the inducement to a contract because the party had sought rescission ofthe contract, not an award of damages In this case, the same request was made for rescission ofthe contract, i e , the deed, and no claim of damages was made V1010! v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion of the Court Page 4| of S7

1185 Furthermore, other courts have acted in this exact manner in determining whether a party

has reasonably relied on a fraudulent representation inducing them to enter“ a contract Eg ,

Kenda Corp , 329 F 3d at 226 27 (considering the plaintiff’s reliance in terms of the business

relationship that had developed between the parties); Greenberg v Tomlin, 816 F Supp 1039,

1056 (E D Pa 1993) ( Although there are no hard and fast definitions of what constitutes

reasonable reliance, the degree of sophistication of the parties and the history, if any, behind the

negotiation process are relevant factors in ascertaining reasonableness (relying upon Mellon Bank

Corp v Ftn! Uman Real Estate Equity & Mortgage Investments 95] F 2d 1399 (3d Cir 1991)))

G&M 01/ Co v Glenfleld Fmanczal Corp 782 F Supp 1085 (D M D 1991) In re Health Risk

Management Inc , 319 B R 181, I91 (Bankr D Minn 2005) (noting that reasonable reliance is

a question of fact but that the guilty party ‘ cannot escape liability by claiming the other party ought

not to have trusted the guilty party (citing Davis v Re Trac Mfg Corp 149 N W 2d 37 39

(Minn 1967))); see Merchants Comm [Bank v Oceanside Vzllage Inc , 64 V I 3, 7 nn 56 57 (V I

Super Ct 2015) (noting that there is no substantive difference between reasonable and justifiable

reliance (citing Masmgtll v EMC Corp 870 N E2d 81 88 (Mass 2007) Van Der S(ok v

VanVoorhees 866 A 2d 972 975 (N H 20055»)

1186 Victor asserts that assuming the facts (as Todman told them) to be true given the

stormy nature of their relationship, the importance of the information presented to her, and the fact

that her two teenage children, who she relied on routinely to have documents read to her, were

7‘ See genelally Peppeltlee Terrace v Williams 52 V 1 225 241 (VI 2009) (noting that a contract can be oral written or inferred from conduct) 3mg v Time Warner Cable Inc 940 F 3d 205 212 (6th Cir 2019) ( A plaintiff may establish reasonable reliance based on a defendant 5 oral representations " (citing United Pat cel 8er Co v Rickey! 996 S W 2d 464 (Ky 1999) Brown v Louisville Jeflerson Cry Redevelopment A 111/1 Inc 310 S W 3d 221 (Ky Ct App 2010) Olive; v JJB Hillard WL Lyons Inc No 2010 CA 001138 MR 2013 WL 762593 (Ky Ct App Mar 1 2013))) Viola: v Todman 2024 V1 18 S Ct Civ N0 2018 0045 Opinion of the Court Page 42 of 57

only a few feet away,” ‘ it was unreasonable for Todman to rely on Victor 3 alleged

misrepresentation ”22 Through this argument, Victor entreats this court to consider his relationship

with Todman Therefore, we consider whether the facts found by the trial court, as a matter of

law, establish that Todman’s reliance upon Victor’s representations was reasonable

a Todman’s Actions Were Reasonable in Light of the Long standing, Family Relationship She and Victor had Established and in Further Consideration of her Lack of Ability to Read English and Lack of Education Limiting her Understanding of Complex Transactions

1187 As reasonable reliance is fact intensive and context specific, there are few broad rules of

law that can be articulated Browne, 66 V 1 at 336 ( The existence of reasonable reliance and

detriment ‘depends upon the facts of each particular case ”’ (citations and internal quotation marks

omitted» People v Humphrey 921 P 2d 1 9 (Cal 1996)( To effectively present the situation

as perceived by the [victim], and the reasonableness of her fear, [they] have the option to explain

[their] feelings to enable the jury to overcome stereotyped impressions about women who remain

in abusive relationships (quoting State v Allery 682 P 2d 312 316 (Wash 1984))) Untied

States v Nwoye 824 F 3d 1 129 l 137 (D C 2016) (Victims in battering relationships are often

‘hypervigilant to cues of impending danger and accurately perceive the seriousness of the situation

before another person who had not been repeatedly abused might recognize the danger ’ Remarks

or gestures that may seem harmless to the average observer might be reasonably understood to

presage imminent and severe violence when viewed against the back drop of the batterer s

particular pattern of violence ” (quoting Lenore E A Walker, Battered Women Syndrome and Self

22 In addition to the following analysis, Victor 3 argument rests largely on the false premise that the facts found by the trial coun are the facts he asserts in this argument However, the Superior Court found that Victor fraudulently induced Todman 5 Signature, a conclusion that implicitly found Todman 5 version of events to be the credible version, and we must make all inferences in favor of the prevailing party when the trial court 5 findings of fact are not clearly erroneous In fact it was impossible for the trial court to have ruled as it did if it had found this aspect of Victor 5 testimony credible VICIOI v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 43 of57 defense 6 NOTRE DAME J L ETHICS & PUB POL Y 321 324 (1992))) Simply the outer limit of

this doctrine requires only that the relied upon statement not be ‘preposterous or palpably false ”’

Kenda Corp 329 F 3d at 227 (quoting Yorke 124 N E 2d at 916 and citing Kuwaiti Danish

Computer Co v Digital Equip Corp 781 N E 2d 787 795 (Mass 2003) Zimmerman v Kent

575 N E 2d 70 71 (Mass Ct App 1991) PROSSER & KEETON 0N TORTS § 108)) In re McKenney

953 A 2d 336 343 (D C 2008) (stating that it is unreasonable to rely upon a statement that is

preposterous or obviously false (quoting 37 AM JUR 2D Fraud & Deceit § 239 at 265 (2001)))

Furthermore, without question, “‘where a defendant has willfully made false representations with

intent to deceive he is not relieved of liability because of his victim’s lack of diligence ’” Id

(quoting Yorke 124 N E 2d at 916)) see In re McKenney 953 A 2d at 343 (noting that failure to

investigate does not make reliance unreasonable unless the facts establish that the person claiming

fraudulent inducement failed to act in good faith according to standards of fair dealing (quoting

authorities)) Lastly, reasonable reliance is a factual inquiry requiring consideration of all relevant

facts including, inter alia, the relationship of the parties, their past dealings the capacity of the

person deceived, the experience of the person deceived, and the circumstances under which the

fraudulent inducement occurred In re Health Risk Mgm! Inc , 319 B R at 191 We, therefore

turn to our consideration of the parties relationship and the individual characteristics of Todman

and Victor, as well as the circumstances (as found by the trial court) under which Todman executed

the quitclaim deed

i The Parties’ Relationship V1610! v Todman 2024 V1 18 S Ct Civ N0 2018 0045 Opinion of the Court Page 44 of 57

1188 As to their relationship, both parties testified that they lived in a meretricious relationship 23

holding themselves out as husband and wife for more than a decade, including during all times

material to this case See In re Marriage of Lindsey, 678 P 2d 328, 331 (Wash 1984) ( Courts

must ‘examine the meretricious relationship and the property accumulation and make a just and

equitable disposition of the property Factors to consider [include] continuous cohabitation,

duration of the relationship, purpose of the relationship, and the pooling of resources and services

Courts should examine each case on its facts ’ (citations omitted» 24 When considering the

nature of their relationship, we consider ‘whether the parties ‘have functioned similarly to the

members of formally recognized family relationships, such as marriage Generally, the legal

consequences flowing from [functional recognition of non martial family units] fall within the

scope of private law (reciprocal rights and obligations) Palazzo, The Strange Pairing

ButldmgA/llances Berween Queer Actzvzsts and Conservative Groups to Recognize New Families,

25 MICH .1 GENDER & L 161 180 (2018) (quoting Robert Leckey Families m the Eyes offhe

Law Contemporary Challenges and the Grip 0fthe Pas! 15(8) IRPP CHOICES 1 3 (2009)) While

Victor disputes the ultimate conclusion to be drawn from the reality of the parties’ relationship,

23 See generally Carmel! 898 P 2d at 834 (defining a meretricious relationship) see also Ex pane Nlelsen 131 U S 176, 185 86 (1889) (“Cohabitation is a living or dwelling together as [sposues] ” (quoting In 1e Snow, 120 U S 274, 281 (1887»), In re Snow, 120 U S at 281 ( Cohabiting [is a person] living in the same house with [a person they] had theretofore acknowledged as [their spouse], and eating at their respective tables, and holding them to the world by their language or conduct, or both as [their spouse] )‘ Moreyv Commonwealth 108 Mass 433 436 (Mass 1871) ( Cohabitation did require proof that they dwelt or lived together (citing Commonwealth v Calef, 10 Mass 153 (Mass 1813)» Beckman v Mayhew 122 Cal Rptr 604 605 n 1 (Cal Ct App 1975) ( non marital family relationship means two people 5 ‘indefinitely continued assumption of family life without a marriage ceremony and without good faith belief they are married ) eg Walters 58 V1 at 401 03 ( Although legal title to the Estate Nazareth property is not held in Parrott’s name, her contributions to the maintenance of the property over the years afforded her an equitable claim in the property ’)

2“ See also eg Bea! v Bea] 577 P 2d 507 510 (Or 1978) Traver v Naylor 268 P 75 78 (Or 1928) In 1e Thomlon 5 Estate 499 P 2d 864 867 68 (Wash Ct App 1972) Humphrles v Riveland 407 P 2d 967 979 80 (Wash Ct App l965)(citing Knollv Knoll 176P 22 (Wash 1918)) McHenva Smith 609 P 2d 855 857 58 (Or Ct App 1980) Victor v Todman 2024 VI [8 S Ct Civ No 2018 0045 Opinion of the Court Page 45 of 57

his testimony (as well as Todman s and that of other witnesses) establishes that he and Todman

operated as a family unit comingling resources and mutually supporting each other in an endeavor

to build a life together that would be more productive and successfiJl than either could have done

individually See In re Marriage ofSaw, 79 P 2d 1020, 1028 (Or 1989) ( ‘Non earning spouses

who maintain the home, do the cooking and cleaning and raise the children, also contribute to the

acquisition of property in a tangible way ”’ (citations and internal quotation marks omitted)) 25 It

is unquestionable that their relationship was that of intimate partners to a jointly established family

unit

Tl89 Furthermore, Victor’s own testimony is replete with instances documenting his emotional

and financial abuse of Todman during the course of their entire relationship See Cesare v Cesare,

713 A 2d 390, (N J [998) (The victim’s testimony about defendant 8 previous threats,

intimidation, and abuse could lead the court to conclude that a reasonable victim in plaintiff‘s

situation would have felt [coerced] Although defendant 3 words did not contain an explicit threat

, the surrounding circumstances were such that the trial court, in the best position to judge the

credibility of the witnesses, appropriately found that ‘ plaintiff was right in her feeling

threatened ” (citations and internal quotation marks omitted» 26 For example, Victor admitted that

25 Dana Harrington Connor, Fmanual Freedom Women Money and Domestic Abuse, 20 WM & MARY J WOMEN & L 339, 358 60 (2014) ( ‘For some abusers financial control is accomplished through a calculated process of seeking out and nurturing a relationship with an individual of compromised means Other abusers spend years restricting their partner's access to education, employment training contacts, and resources, thereby limiting her ability to secure financial freedom once the abuse beings Moreover, women in povefly experience multiple vulnerabilities, which have a causal relationship with economic hardship such as single parenthood homelessness, diminished social capital, compromised immigration status, and language barriers (citations omitted»

° See generally Arianne Renan Barzilay, Power In the Age ofln/Equallry Economzc Abuse Mascu/Imnes and the Long Road 10 Marriage Equality 51 AKRON L RI—V 323 328 29 (2017) ( Economic abuse [is using] tactics that control a woman s ability to acquire, use, and maintain economic resources thus threating her economic security and potential self sufficiency " (citations omitted» VICIOI v Todman 2024 V1 18 S Ct Civ No 2018 0045 Opinion of the Court Page 46 of 57

Todman executed a quitclaim deed that turned over to him the only valuable asset accumulated

during their relationship This is the most common form of financial abuse in abusive

relationships 27 Victor admitted that he attempted to force upon Todman the entire financial

burden of the property by generously offering to give her the entire property and the entire debt

Again, this situation is among the most common forms of financial abuse designed to make the

abused partner panic Victor further admitted that he forced Todman to bear every family expense

beyond paying the mortgage and taxes and that he used Todman’s share of rental income on their

most valuable asset, parcel 278, to also pay those expenses; thus, he ensured that Todman was

never able to accumulate any wealth or assets during their relationship, again, one of the most

common tactics of financial abuse

1190 Moreover, Victor admitted that his definition of necessary family expenses was only those

expenses that served his needs while coincidentally meeting the needs of his family and members

of the household For example, Victor cavalierly testified that the home telephone was not a

necessary family expense because he had his own cell phone Victor further testified that, only

after he had exploited Todman’s financial, physical, and emotional resources and he had

manipulated their finances such that he owned multiple properties free and clear of debt (while he

simultaneous overloaded with debt the single property to which Todman had a recorded interest),

he then evicted her from the home they had built together and accomplished this by deceit and

27 See generally Margaret E Johnson, Changing Course In the Anti domestic VIo/ence Legal Movement From Safety to Seem 11y, 60 VlLL L REV 145, 195 (2015) (“Debt can be coerced in multiple ways, including tricking a partner into signing a quitclaim deed to the home (citations omitted»; e g , Alderson v Aldeison, 225 Cal Rptr 610, 612 (Cal Ct App 1986) ( Jonne moved from the family home, she said, because Steve told me to get out Prior to leaving, Jonne signed quitclaim deeds ‘for all of the houses She said she did so under duress Steve told me that I would never get any property He would see me dead before I got any of them ’ Jonne said she was afraid for her own safety and so she just signed the deeds to get out Jonne received no payment for signing the deeds ’); Tylan/(sl v Piggms 205 N W 2d 595 597 (Mich Ct App 1973) ( After the man tired ofthe woman he brought suit claiming the [family home] was his property (citation omitted)» VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 47 of 57

ambush With such open admission to a long term strategy of abuse under oath, any court would

be remiss in failing to remember that

[i]t is important that courts and attorneys hearing or presenting evidence in domestic [abuse] cases be aware that the cycles of [abuse] and the power dynamic in abusive relationships can dramatically affect the type, quality, and quantity of evidence available to the court Judges and attorneys who have been schooled in the dynamics of domestic [abuse] will be best able to understand the testimony and judge its credibility For example, frequently [an abuser] will testify about justifications for the [abuse] that can provide a fact finder important insight into the existence of power and control in the relationship [Abusers] will minimize or deny that the [abuse] occurred They might attempt to explain their behavior, focusing on actions by the victim that supposedly caused the [abuse] [By contrast, w]hen [abused partners] present testimony particularly those who have been victimized over a long time, research indicates that they will tend to underestimate both the frequency and the severity of the [abuse] they experienced [Similarly,] out of fear of their [abuser’s] retaliation, [they] will minimize and deny the [abuse] request that court proceedings be dismissed, or accept the [abuser s] promise to stop fin’ther [abuse] from occurring All of this will flavor the evidence presented at trial

Klein & Orloff, Prowdmg Legal Protection for Battered Women An Analyszs ofState Statutes

and Case Law 21 HOFSTRA L REV 80l 1173 & n2309 (1993) (citing Anne L GANLEY

DOMESTIC VIOLENCE THE WHAT WHY AND WHO AS RELEVANT TO CIVIL COURT CASES IN

DOMESTIC VIOLENCE IN CIVIL COURT CASES A NATIONAL MODEL FOR JUDICIAL EDUCATION 23,

33 (Agtuca, et al eds , I992)) The trial court 5 conclusions that Todman’s reliance upon Victor

and that the subsequent actions she took founded upon that reliance were reasonable are supported

by the evidence of the nature of their relationship

ii Todman’s Characteristics

1|9l While Victor, again, relies on a false factual premise that Todman was perfectly literate

and could read and understand the deed and any other documents presented to her the trial court’s Victor v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 48 of 57

findings were the opposite and are amply supported by the record As the Superior Court explicitly

found, Todman had only an education comparable to that of a middle school student and lacked

the ability to read Furthermore, in light of the long history of emotional and financial abuse

displayed in the record, the trial court 5 conclusion that Todman s reliance was reasonable is

supported by the evidence Indeed, Victor admitted that, when Todman asked how the couple

could afford to purchase the 278 Property, he explained the financing process, and once he did

this, Todman agreed the purchase was a good idea Notably, it does not benefit Victor to claim

that Todman’s reliance at that time was unreasonable, and he makes no such argument But, when

it would have the legal result of validating the quitclaim deed, Victor asserts that it was

preposterous for Todman to accept his representations Such contradictory factual arguments are

of little to no value and lacking in credibility

1]92 In contrast to Victor’s appellate arguments, the Superior Court found that the two had a

long and intimate relationship upon which they built both a family and community property to

their benefit Todman lacked education and financial sophistication and relied upon Victor in their

business and financial dealings while providing him (and their family) with significant financial

and emotional support Likewise, multiple statements by Victor during his testimony indicate that

he exploited his position of power in his relationship with Todman to manipulate her to his ends,

the most obvious being when he threatened Todman with unloading all the family expenses upon

her under the guise of generously giving her the 278 Property ’8 Todman 5 lack of education

and her role as the subservient partner in the relationshikmlly documented in this record amply

support the trial court’s conclusion that her reliance was reasonable

2:311:63 Littwin Coelced Deb! The Role ofCorIsumeI Credit m Domestic Violence, 100 CALIF L REV 95] 982 VICIOI‘ v Todman 2024 VI 18 S Ct Civ N0 20l8 0045 Opinion of the Court Page 49 of 57

iii The Circumstances of the Execution of the Deed

1|93 As we already noted, Victor’s appellate argument assumes that the Superior Court 5 factual

findings are clearly erroneous, but they were not As the record reflects, Todman was alone with

Victor in the bedroom of their apartment (with only Victor 5 friend present to serve as a witness)

and told that she had to execute the document he handed her (with fitll knowledge of her inability

to read it) and falsely represented that it was a loan document rather than a quitclaim deed

Furthermore, it is established that nobody else was in the apartment at the time

1l94 In direct contradiction of his claim of the ‘ voluntary nature of Todman 8 giving Victor

her half of the 278 Property, Victor demonstrated that his efforts fall nothing short of coercion

Victor, having previously testified that Todman “wasn’t making no money,” ‘ making about $5 or

$6 an hour, ’ explains that he was home and took Todman into where he had the deed prepared for

her to execute and explained that he believed it was best Todman take the property right now

The cistern is now poured I think you can manage $238 I gonna move on ” Predictably,

Todman was distressed at the prospect of having to support her children, including Victor 5 son,

when making only $5 6 an hour and suddenly being saddled with the additional expense of a

mortgage payment and began pulling her hair out her head ’ and begging Victor not to do that

Again, predictably, Victor’s response was to “magnanimously” tell Todman, I said I gonna leave

so I say, well, if you don’t want me to leave just take your name off [the property] ”29

1|95 Victor admits that Todman was distressed, as he testified to Todman having exclaimed to

him that she had no idea what to do So, again Victor magnanimously’ told Todman to go to

Victor 5 lawyer so the lawyer could explain to Todman the necessary steps to give her half of the

” During cross examination, Victor further described this voluntary” decision of Todman explaining that he told Todman, ‘1 said, if you are not going to take it take your name off ‘ Victor specifically testified that these were his exact words at the time stating, I’m telling you the exact words that I‘m saying Those are the exact words Hclor \ Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 50 of 57

property to Victor After all this, by Victor 3 assessment, Todman voluntarily agreed to give him

her half of the property at that time because they were not getting along Now, even if this

testimony were to be found credible (a conclusion precluded by the trial court 5 findings of fact

and ultimate disposition), it is clear that Victor coerced Todman into executing the deed by

threatening to burden her financially Todman, faced with the prospect of being homeless with

her and Victor’s child to care for and making only $5 6 an hour, and given the choice of taking on

a mortgage payment for a property containing nothing more than a cistern, chose the alternative to

care for her child and accede to Victor’s demands

1196 Yet again, by Victor’s own admission, this all occurred in November 2003, and he and

Todman continued to live together for another five years in the same manner as they had since

foming a family unit and holding themselves to the public as husband and wife in Tortola in 1997

Victor’s actions in this specific regard utterly undermine any credibility in his testimony that he

regularly, or ever, offered Todman the money he was obligated to provide More damningly, this

testimony leaves no question that, had the trial court accepted this testimony as credible, any

conclusion that Todman’s execution of the quitclaim deed was voluntary would be clearly

erroneous as unsupported by any record evidence 3°

1197 Under these circumstances, especially considered in light of the couple’s history presented

in the record, Todman’s reliance was reasonable See In re McKenney, 953 A 2d at 343

( Moreover, [the defendant] is hardly in a position to fault [the plaintiff’s] acceptance of his

assertions when [they] pressed [the plaintiff] vigorously for an immediate decision the face of the

3° See 5 V l C § 740(3) ( A witness willfully false in one part ofhis testimony may be distrusted in others ) 5 V l C § 740(2) (The finder of fact is not bound to find in confonnity with the declarations of any number of witnesses which do not produce conviction in their minds ) Vim» v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 51 of 57

impending demolition [of the property] On this record, we cannot say as a matter of law that [the

plaintiff’s] reliance was unreasonable ), Kenda Corp , 329 F 3d at 227 (holding that even a

sophisticated business person 5 failure to investigate does not make reliance unreasonable)

iv Victor’s Credibility

1|98 Moreover, Victor’s credibility issues further bolster Todman’s version of events and

further support the factual findings and legal conclusions of the trial court As Laurie s testimony

indicates, Victor was unscrupulous in all his dealings Victor induced multiple people to come to

work for him and represented that he would hold their compensation in trust and even at times

representing he would turn the money over to the families of the men working for him Yet, Victor

seems to have uniformly refused to turn over the promised compensation and to have uniformly

pocketed money given to him for delivery to third parties

1199 Additionally, Victor undermined his credibility, often offering convenient” statements

that were at best weakly supported by the evidence and often contradictory to his own testimony

as well as the other evidence before the court 3' For example, Victor testified both that, when he

sought to purchase the 278 Property, he took Todman to the property and explained to her how

they could afford the purchase, to which she ultimately agreed and that he did not get her to agree

to move and that “she could have come she could have stayed ” These two realities cannot exist

simultaneously If he and Todman were not operating as a family unit in agreement to jointly

comingle resources and provide labor in the joint acquisition of assets, then there was absolutely

no reason for Victor to explain to Todman how the 278 Property could be purchased; indeed, under

3' See Klein & Orloff, Providing Legal Protectionfor Batteied Women An Analysis ofState Statutes and Case Law, 21 HOFSTRA L REV 80] l 173 & n 2309 (1993) ( Few men even the most severe [abusers] think of themselves as men who [abuse] their [partners] The abuser s tendency to minimize problems is comparable to the denial by alcohol and drug abusers (citing GANLEY, supra at 33, Adams, Idenujfvmg the Assaulnve Husband In Court You be the Judge 33 BOSTON B J 23 24 (1989)» VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 52 of 57

such circumstances, there would have been no need for Todman’s involvement at all Yet, Victor

testified in detail about Todman’s involvement in the purchase

11100 Furthermore, while his testimony was initially phrased in such a way as to indicate that

Todman strenuously opposed the purchase of the 278 Property, when pressed, Victor explained

that Todman actually questioned how they could afford such an expense and, after discussing the

finances, readily agreed to jointly purchase the property, co signing the loan for the purchase

Given the family 5 financial conditions at the time, Todman 3 concerns were the height of financial

and parental responsibility, not some subterfuge employed to oppose a decision beneficial to the

family

11101 Similarly, Victor testified that the household expenses were evenly divided However,

when further pressed, it became apparent that Victor’s definition of equal ’ was, in a word,

convenient While Victor readily asserted this 50 50 split of household expenses, what constituted

a household expense worth Victor 5 50% contribution was in reality only those expenses Victor

wanted to or felt like paying With five children and four adult workers living with Victor and

Todman and Victor admitting that he would be gone from before day break until after I l 30 p m

every day, he refused to contribute to the expense of a family phone because he deemed it to be an

unnecessary expense, explaining ‘ I had a cellphone so I didn’t need a home phone ” Similarly,

cable TV was an unnecessary expense to which he never contributed his earnings or rental earnings

from any of the properties And yet again, Victor conceded that Todman paid for the electricity

Yet, Victor was using 100% of the rental income from 278, of which Todman was entitled to 50%,

to pay 100% of the various loans he had obtained Therefore, he was utilizing Todman s rental

income from 278 to pay the m0Itgage and taxes thus Victor was only using his personal income

to pay 50% of the mortgage while leaving Todman to cover what was effectively 100% of the VICIOI v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 53 of 57

family’s expenses, all while she was contributing her time, labor, credit, and finances to the

construction, in addition to having her share of rental income exploited by Victor to pay the

mortgage and taxes To term this an even split of the expenses between Victor and Todman is

disingenuous at best

11102 Likewise, while Victor claimed to contribute to groceries, he admitted there was never a

“standard amount” that he contributed, and importantly, he only contributed when Todman s

tipped income was so insubstantial as to prevent her from covering the total amount This assertion

reflects Victor 8 convenient view of what constitutes an even split between two partners in a family

unit Moreover Victor frankly admitted that he never gave financial support to the upbringing of

his two stepchildren, even though they lived in the family home

11103 Additionally, Victor s explanations for his paying of both the compensation stated in the

deed and his child support obligations were, at best, mendacious First, Victor claimed he offered

Todman $6,000 to purchase her half of the property, but she refused Then, he claimed he paid

her through his contribution toward the purchase of a new vehicle After contradictory testimony

as to these payments, wherein Victor assented that Todman regularly refused to accept money from

him (which Todman denied), Victor confirmed that he was incarcerated twice for violating the

domestic violence order, as related to that order s requirement that Victor pay various expenses of

Todman Indeed, Victor confirmed that he had failed to pay child support for an inordinately long

period of time, accruing $17,000 in arrearages 32 Upon attempting to return to St Thomas from a

32 Deborah Epstein, Margaret E Bell, Lisa A Goodman, Transforming Aggressive PI osecutlon PolICIes PI 10! III mg Victims Long (e; m Safety m the PI oseczmon ofDomestIc Violence Cases, 1 1 AM U J GENDER SOC POL Y & L 465, 477 78 (2003) ( Even when ordered to provide spousal or child support by the court many [intimate partner abusers] refuse to make payments or delay doing so for long periods of time (citing Sarah M Buel Domenc Violence and the Law An Impassmnea' Explorationfor Family Peace 33 FAM 0L Q 719 743 (1999) Anna Marie Smith, The Sexual Regulation Dimension ofContempor my Welfale Law A F(fly State Overwew, 8 MICH J GENDER & L 12] 155 56 (2002))) Victor v Todman 2024 VI [8 S Ct Civ No 2018 0045 Opinion of the Court Page 54 of 57

visit to Guyana, Victor was denied re entry and denied renewal of his visa until he satisfied that

obligation

1|104 But the truly absurd convenience of Victor 3 testimony is glarineg exposed and laid bare

when considering his testimony For someone who asserted that he only tolerated Todman’s

moving to Hospital Ground with him because he cared so much about his child, Victor had no

qualms or compunctions about letting his child suffer without financial support to the tune of

$17,000, after Victor had evicted Todman from the family home and readily sent his child along

with her Of course, Victor was able to make an entire lump sum payment of $17,000 of child

support arrearages in order to regain entry to this country Yet, this “only begs the question, if he

was able to pay his arrears , why didn’t he? He knew he had an obligation to do so Yet, the

record is devoid of [evidence that Todman took] any action that would permit [Victor] to

reasonably assert that he was led to believe that he had been released from the obligation ” Kelman

v Kelman 21 V I 307 310 (V I Super Ct [985)

11105 To conclude that this testimony had the overwhelming power to destroy whatever remained

of Victor 3 credibility is an understatement, and such a determination was exclusively within the

province of the finder of fact, i e , in a bench trial, the trial judge From the outset, Victor’s telling

of the events leading to his arrest was pure fantasy and fiction Victor would have had the court

believe that he was getting random texts from an unknown number informing him of a medical

condition and then went to a self pay kiosk at a phone store and looked up that number, which

magically belonged to his stepdaughter Then, at his insistence, he and Todman visited the doctor,

and the test results showed that he had no infections or diseases Todman on the other hand,

refused to share her results with him Victor would have had the court believe, first, that Todman,

who Victor admitted was the primary care giver and responsible for the family home housing five Victor v Todman 2024 V! 18 S Ct Civ No 20l8 0045 Opinion of the Court Page 55 of 57

children, somehow contracted a sexually transmitted disease and second, that Victor, who admitted

he was, more or less daily, out of the family home from before daybreak until after I l 30 p m

and oddly prefaced his entire explanation of this incident by indicating he was working part time

at a KFC at the time had a clean bill of sexual health

1|l06 Although Victor repeats ad nauseam his assertion that Todman’s testimony is

uncorroborated which it is not it is his testimony that lacks significant corroboration and is

internally contradictory While Todman’s testimony provided a minimum evidentiary factual

record, as discussed above, in all material respects Todman s testimony was corroborated It is

noteworthy that Laurie testified concerning Victor’s admission of his plan to fraudulently induce

Todman into contracting away her right to a one half, undivided interest in 278 Hospital Ground,

the real property that is at the heart of this controversy Likewise, Thevar testified as to Todman 5

lack of ability to read It cannot be said that the credibility determination implicit in the trial court’s

final judgment is utterly lacking in evidentiary support or irrational, such that it is lacking a rational

relationship to the record evidence Indeed, had the credibility determination been the other way

the factual support of such a determination would have been seriously questionable All factors

relevant to the evaluation of whether Todman’s reliance upon Victor was reasonable support the

conclusion that her actions were in fact, reasonable, and the trial court 5 conclusion was not wrong

as a matter of law and was not an abuse of discretion

D The Superior Court’s Allocation of the Mortgage Debt was Legally Incorrect and Factually Clearly Erroneous

1|107 Todman cross appeals the Superior Court’s judgment because, while reciting that Todman

is only responsible for her share of liability on the mortgage ’ the judgment allocates the entire

mortgage to Todman Just as she argued in her motion for correction ofjudgment, which the trial V1610: v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion ofthc Court Page 56 of 57

court denied as moot for lack of jurisdiction because the matter was already before this Court,

Todman argues that, as a 50% c0 owner, at a maximum, her share of liability is $l 13,620 58

However, Victor requests that we vacate the trial court’s equitable distribution award because the

trial court failed “to take the fitrther step of determining each co tenant’s proportionate share of

the 278 Property, based on their respective contributions, as shown by the evidence produced at

trial But see In re Marriage ofMassee 970 P 2d 1203, 1209 10 (Or 1999) (“A homemaker

[partner] contributes to the acquisition of assets, because the performance of domestic tasks by

one [partner] frees the other to devote energy and concentration to other tasks that may generate

assets ” (citations omitted» In various ways, detailed extensively above, Todman contributed

her finances, labor, time, and emotional support to the development of the 278 Property The

portion of the Superior Court’s Judgment ignoring all such contribution and placing the burden of

the entire mortgage on Todman was an obvious abuse of discretion Therefore, in this regard, the

judgment of the Superior Court is reversed, and on remand the Superior Court is directed, after

taking further evidence as to actual contributions and appropriately valuing support contributions,

to enter a revisedjudgment See Demmmg v Demmmg, 66 V I 502, 51 1 (V I 20 l 7) ( On remand,

the court shall consider [the plaintiff’s] unacknowledged contributions and also explain its

calculation of [the parties’ opposing] interests in the property ); Kozlowskl, 395 A 2d at 920,

Sparks v Sparks 485 N W 2d 893 897 (Mich 1992) ( In equity cases it is not enough for the trial

court to have acted in a nonarbitrary manner; it must also reach a disposition that is fair and just ”)

Ill CONCLUSION

11108 The trial court’s findings of fact that have been challenged are affirmed Likewise, the trial

court 5 application of the clear and convincing evidence standard is affirmed While the proper V1610! v Todman 2024 VI 18 S Ct Civ No 2018 0045 Opinion of the Court Page 57 of 57

acknowledgement and recording of a deed makes it presumptively valid, the evidence established

fraud in the inducement by clear and convincing evidence, thus overcoming the presumptive

validity of the deed

11109 While, as a matter of findings of fact and legal analysis, the trial court was largely correct,

in its final application it stopped short of completion As Victor notes, simply rescinding the deed

was not the end of the matter As Todman recognizes, the rescission had no legal effect beyond

returning the parties to the rescinded quitclaim deed to their original positions prior to its

execution, that is to say, Victor and Todman each held a one half, undivided interest in 278

Hospital Ground There still remained the task of actually determining the equities as to how much

of the mortgage encumbers their respective one half interests Therefore, the judgment of the

Superior Court is partially vacated and the matter is remanded for the sole purpose of determining

how much of Todman’s undivided half interest in the 278 Property should be burdened, if at all,

by the mortgage

Dated this 2"“ day of April, 2024

BY THE COURT ;

IVE ARLINGT:% SWAN Associate Justice

ATTEST VERONICA J HANDY ESQ Clerk of the Court

By epu Clerk [I

Date April Z, 202%