First American Development Group/Carib, LLC v. WestLB AG
55 V.I. 594
Supreme Court of The Virgin Is...2011Background
- Appellant First American Development Group/Carib, LLC borrowed up to $61.6M from WestLB AG to develop Pond Bay in the U.S. Virgin Islands; First American granted WestLB a first-priority mortgage and construction security in Pond Bay and assigned related permits, plans, and collateral.
- WestLB funded the project but later indicated a shortfall and pursued default and receivership due to funding gaps and construction suspension.
- WestLB sought appointment of a receiver; the Superior Court initially granted and then vacated and reheard, ultimately appointing Richard Morawetz as receiver on June 4, 2010.
- First American challenged the receiver appointment and filed a notice of appeal in October 2010, arguing only the April 8, 2010 and June 4, 2010 orders were being appealed.
- The Virgin Islands appellate court held the thirty-day appeal period in 4 V.I.C. § 33(d)(5) applies to all appeals under § 33(b) and § 33(d), rendering the appeal untimely and lacking jurisdiction.
- The court treated the motion filed June 16, 2010 as insufficient to toll the appeal period under Rule 5(a)(4) of Supreme Court Rule 5(a)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §33(d)(5) applies to all §33(b)-(d) appeals | First American argues §33(d)(5) should apply only to §33(d) (criminal) or be read to exclude §33(b) civil interlocutory appeals | WestLB contends §33(d)(5) uses ‘in all such cases’ and applies to §33(b) as well | Yes; §33(d)(5) applies to all §33(b)-(d) appeals, giving this Court jurisdictional timing |
| Whether §33(d)(5) is a jurisdictional requirement | The timing rule is a claims-processing rule that could be tolled | The language and history show a jurisdictional requirement | Yes; §33(d)(5) is jurisdictional, cannot be tolled by Rule 5(a)(4) |
| Whether the June 16, 2010 tolling motion could toll the 30-day period | Rule 5(a)(4) tolling could extend the deadline | Rule 5(a)(4) tolling does not apply to a jurisdictional time bar | No; tolling ineffective to extend the period under a jurisdictional rule |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (U.S. 2007) (jurisdictional time limits in appeals; cannot be tolled by court rule)
- Henderson v. Shinseki, 131 S. Ct. 1197 (U.S. 2011) (defines jurisdictional time limits and non-tollability by tolling rules)
- In re Najawicz, 52 V.I. 311 (V.I. 2009) (interprets section 33(d) and pursuit of immediate appeals under subsections; relevance to civil/criminal framing)
- United States v. Fisher, 6 U.S. (2 Cranch) 358 (U.S. 1804) (illustrative of use of headings in statutory interpretation)
- Philadelphia Dept. of Corrections v. Yeskey, 524 U.S. 206 (U.S. 1998) (statutory headings cannot override text; aids interpretive approach)
- Brothers of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519 (U.S. 1947) (headings not controlling over plain text)