Henry v. Dennery
2011 V.I. Supreme LEXIS 50
Supreme Court of The Virgin Is...2011Background
- Dennery and Henry entered an arrangement for Henry to reside in Dennery's apartment, which Dennery later terminated and initiated forcible entry and detainer (FED) actions to evict Henry.
- The first FED (ST-09-CV-365) was dismissed by a magistrate who found no written lease and only 30 days’ notice to quit, concluding Henry was a tenant at will entitled to 3 months’ notice; the dismissal was without prejudice.
- Dennery filed a second FED (ST-09-CV-561) which resulted in restitution in favor of Dennery after a magistrate held Henry had no bona fide possession rights, with a stay of execution until December 31, 2009.
- Henry appealed the second decision to the Superior Court, which conducted a trial de novo; Dennery later represented that Henry had actual notice of the March 11, 2010 hearing.
- At the March 11, 2010 hearing, Henry did not appear; the court found Henry had actual notice based on unsworn statements by Dennery’s attorney and statements from Snell, without Brad testimony, and proceeded with the trial.
- The Supreme Court ultimately held that Henry did not receive proper notice of the March 11, 2010 trial; the trial de novo proceeding was reversed and remanded for proceedings consistent with the opinion, and the appeal timing was addressed under Supreme Court Rule 5(a)(8).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Henry properly given notice of the March 11, 2010 trial? | Henry | Dennery | Notice not properly shown; due process violated |
| Did the Superior Court's due process analysis rely on admissible evidence of notice? | Henry | Dennery | Uns sworn attorney statements insufficient; not evidence |
| Is Henry's appeal timely under Rule 5(a)(8) excusable neglect stemming from notice issues? | Henry | Dennery | Timeliness upheld; appeal timely due to excusable neglect |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process requires notice reasonably calculated to inform)
- Gore v. Tilden, 50 V.I. 233 (V.I. 2008) (notice must convey required information and allow time to appear)
- Rubin v. Johns, 109 F.R.D. 174 (D.V.I. App. Div. 1986) (actual notice satisfies due process)
- In re Guardianship of Holly, 164 P.3d 137 (Okla. 2007) (unsworn attorney statements are not evidence)
- Scott v. State, 922 So.2d 1024 (Fla. Dist. Ct. App. 2006) (attorney statements generally not evidence unless sworn)
- Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (attorney representations must be sworn to be evidence)
- Hodge v. McGowan, 50 V.I. 296 (V.I. 2008) (standards for reviewing factual findings on appeal)
- Daniel v. Board of Elections, 49 V.I. 322 (V.I. 2007) (standard of review for legal conclusions vs. factual findings)