Mill Harbour Condominium Owner's Ass'n v. Marshall

Although designated as the appellee in this matter, Marshall failed to submit an appellate brief, appear at oral arguments, or otherwise participate in these proceedings.

This Court notes that Mill Harbour’s notice of appeal was not filed by an attorney, but by Miller, who is not licensed to practice law in the Virgin Islands. Although 4 V.I.C. § 112(d) prohibits counsel from appearing on behalf of a party in the Small Claims Division, “[t]here is nothing in [the Virgin Islands] small claims schemata that bars counsel” from filing documents in the Small Claims Division after trial or judgment. Carr v. Pena, 432 F. Supp. 828, 833 (D.V.I. 1977). Moreover, notwithstanding section 112(d), this Court’s rules require all documents submitted on behalf of corporations and similar entities to be filed by counsel. See V.I.S.CT.R. 18(b) (“If a corporation is pursuing or defending an appeal, itmust be represented by counsel duly admitted to practice law in the Virgin Islands”); see also Kevin A. Rames, P.C., v. CML, Inc., S. Ct. Civ. No. 2008-046, slip op. at 1 (V.I. Jan. 8,2009) (rejecting purported pro se filing on behalf of corporation). Nevertheless, appellate courts have consistently held that a notice of appeal filed under such circumstances is not void, but merely voidable, and may nevertheless be legally operative if an attorney subsequently enters an appearance on behalf of the corporation or association in the appellate proceedings. See, e.g., *584Instituto de Educacion Universal Corp. v. U.S. Dept. of Educ., 209 F.3d 18, 22 (1st Cir. 2000) (“Thus, we hold that a corporate officer may sign and file a notice of appeal on behalf of the corporation, as long as the corporation then promptly retains counsel to take up the cudgels and prosecute the appeal.”); Bigelow v. Brady, 179 F.3d 1164, 1165-66 (9th Cir. 1999) (“We fail to see any compelling reason to refuse to recognize a corporation’s notice of appeal, signed and filed by a corporate officer, so long as a lawyer promptly thereafter enters a formal appearance on behalf of the corporation and undertakes the representation.”); In re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1981) (holding that corporation’s notice of appeal shall be accepted if attorney enters appearance on corporation’s behalf within 30 days, but dismissed if no attorney enters appearance); Boydston v. Strole Development Co., 193 Ariz. 47, 969 P.2d 653, 656 (1998) (“Acorporation cannot appear without alawyer, but whenit does so its action is not automatically a nullity. A reasonable opportunity should be given to cure the problem. A defective notice of appeal does not necessarily deprive the court of appeals of jurisdiction. It will be sufficient as a notice if it is neither misleading nor prejudicial to the appellee.”); Telepower Communications, Inc. v. LTI Vehicle Leasing Corp., 658 So.2d 1026, 1027 (Fla. Ct. App. 1995) (holding notice of appeal filed by non-attorney is not a nullity, but voidable if not remedied by counsel’s subsequent appearance).

Here, although Miller filed a notice of appeal on behalf of Mill Harbour, a licensed attorney shortly thereafter entered an appearance on behalf of Mill Harbour and took the steps necessary to prosecute the instant appeal, including submitting a brief written by counsel. Consequently, it is not necessary for this Court to determine whether Virgin Islands law authorizes a non-attorney representative to file a notice of appeal on behalf of a corporation, for, even if Mill Harbour’s notice of appeal was defective, Mill Harbour has taken the steps necessary to cure the defect. See Save Our Creeks v. City of Brooklyn Park, 699 N.W.2d 307, 309 (Minn. 2005) (adopting curable defect approach to purported pro se filings by corporations).

In its appellate brief, Mill Harbour also contends that the Superior Court abused its discretion when it denied its May 23,2008 motion to transfer the case from the Small Claims Division to the Civil Division. The Virgin Islands Code provides that, in matters heard before the Small Claims Division, “[njeither party may be represented by counsel and parties shall in all cases appear in person except for corporate parties, associations and partnerships which may appear by a personal representative.” 4 V.I.C. § 112(d). However, in its appellate brief, Mill Harbour expressly states that “[it] does not question the right of the Small Claims Court to prohibit the appearance of attorneys.” (Appellant’s Br. at 19.) Moreover, Mill Harbour also “concedes that, under prevailing case law, the better practice would have been for Mill Harbour to file the motion to transfer pro se, rather than have its prior counsel file it.” (Appellant’s Br. at 13-14.)

Although Mill Harbour does not identify or discuss the “prevailing case law” in its brief, it likely refers to a series of Superior Court decisions in which documents filed by attorneys on behalf of litigants in the Small Claims Division, prior to the entry of a final judgment, have been deemed nullities. See, e.g., Lettsome v. V.I. Sea Trans., 52 V.I. 109, 114 (V.I. Super. Ct. 2009) (characterizing answer submitted by corporation’s attorney in a small claims action as a “nullity”); Thomas v. St. Croix Marine, 41 V.I. 3, 5 (V.I. Super. Ct. 1995) (“[A]ll documents filed by counsel on behalf of SMC, i.e., its answer, motion to transfer, and proposed order, are null and void.”). But see Deliver It, Inc. v. Mitchell, 28 V.I. 25, 29 (V.I. Super. Ct. 1992) (“[N]o parties other than corporations may appear by counsel in the Small Claims Division -”). Because a nullity has no legal effect, appellate courts have held that requesting relief from a trial court in a motion that is later deemed a nullity is not sufficient to preserve the issue for appeal. See Jones v. Unibilt Industries, Inc., 2004 Ohio 5983, ¶ 16 (Ohio Ct. App. 2004) (deeming issue raised only in motion for reconsideration, which constituted a nullity, waived on appeal); cf. State v. Jordan, No. M2007-02675-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 273, *4 (Tenn. Crim. App. 2009) (holding issues raised only in motion deemed a nullity waived on appeal). Accordingly, although the Superior Court considered Mill Harbour’s motion, this Court is unable to review the correctness of the Superior Court’s decision if the motion to transfer constituted a nullity. See V.I. Port Authority v. Joseph, 49 V.I. 424, 428 (V.I. 2008) (“ ‘It is well established that failure to raise an issue in the trial court constitutes a waiver of the argument on appeal.’ ”) (quoting Gass v. V.I. Tel. Corp., 311 F.3d 237, 246, 45 V.I. 649 (3d Cir. 2002)); see also Martinez v. Colombian Emeralds, 51 V.I. 174, 187 (V.I. 2009) (holding that Superior Court errs in considering motion not properly before it); State v. Barkwell, 590 S.W.2d 93, 95 (Mo. Ct. App. 1979) (holding that appellate court must suasponte determine whether motion was a nullity because a nullity “preserves nothing for appellate review.”). Accordingly, because Mill Harbour makes no attempt to argue on appeal that attorneys should be permitted to file documents in the Small Claim Division notwithstanding section 112(d), this Court shall not consider whether the Superior Court erred in denying Mill Harbour’s request for a transfer.

Compare Ruth B. ex rel. Maldonado v. Whitehall Apartment Co., LLC, 56 A.D.3d 273, 866 N. Y.S.2d 668, 669 (N.Y. App. Div. 2008) (affirming denial of motion for summary judgment on plaintiffs negligence action, premised on theory that apartment building owner assumed, and breached, duty to maintain and monitor security cameras, resulting in plaintiffs sexual assault) with Loo v. Artichoke Joe’s, A099351, 2003 Cal. App. Unpub. LEXIS 5578, *15 (Cal. Ct. App. 2003) (holding casino’s efforts “to ensure ‘adequate protection of customers and employees from harm,’ ” which included hiring of security guards to occasionally patrol parking lots, did not give rise to assumption of voluntary duty to “ ‘guarantee the safety’ of casino patrons or guarantee to provide constant protection or surveillance of the casino parking lots.”)

At the September 23, 2008 hearing, Marshall testified that she moved into Mill Harbour’s complex “because [she] wanted to live in a safe, secure neighborhood.” (Supp. App. 10.) However, to the extent this statement could be construed as a claim that Marshall would not have rented the unit owned by the Rodney Stevenson Family Partnership had she known the entire parking lot was not covered by functional security cameras, it is irrelevant to the instant action, since Marshall’s complaint only sought to recover for damages to her car.

The Superior Court, in its findings of fact, stated that, had Marshall been “put on notice that this particular area is not covered by the cameras, at least she would have been then able to make [a] personal decision... to park [t]here and assume the risk, or... go someplace else where at least [she] ha[s] some coverage.” (Supp. App. at 31.) However, such an inference, without more, is not sufficient to hold that Mill Harbour’s negligent act or omission caused the damage to Marshall’s car. See Bradfield v. Stop-N-Go, Inc., No. CA 10260, 1987 Ohio App. LEXIS 8763, *5 (Ohio Ct. App. 1987) (affirming trial court’s finding “that reasonable minds could not find that the decedent’s death was proximately caused by any act or omission of the appellee” when record contained no evidence, other than appellant’s unsubstantiated contention, “that but for the alleged representations to Ms. Bradfield that the camera was functional, she would not have worked at the Stop-N-Go.”).

Because this Court reverses the Superior Court’s September25,2008 Judgment, it is not necessary or proper for this Court to consider Mill Harbour’s argument that the Superior Court erred in its damage award.