Turnbull- Wheatley v. Turnbull

For Publication

                  IN THE SUPREME COURT OF THE VIRGIN ISLANDS

 KAREN TURNBULL WHEATLEY                       )    S Ct Civ No 2019 0091
 and OTHER HEIRS, KENNETH                      )    Re Super Ct Civ No 550 2010 (STT)
 TURNBULL JR KLARIA TURNBULL                   )
 KEITH TURNBULL, and VIVETTE                   )    Consollsiated Cases
 TURNBULL                                      )    S Ct Civ N0 2019 0062
              ’                                     S Ct Cw No 20l9 009]
 Appellants/Defendants                         )
                                               )
 V                                             )
                                               )
 NAOMI TURNBULL as Successor Trustee           )
 of the KENNETH TURNBULL SR                    )
 REVOCABLE TRUST                               )
 Appellee/Plaintiff                            )
                                               )
                   On Appeal from the Superior Court of the Virgin Islands
                                Division of St Thomas & St John
                         Superior Court Judge Hon Renee Gumbs Carty

                                Considered November 19, 2020
                                   Filed December 29, 2023

                                     Cite as 

BEFORE        RHYS S HODGE Chief Justice' MARIA M CABRET Associate Justice and
              IVE ARLINGTON SWAN Associate Justice


APPEARANCES

Clive C Rivers, Esq
Law Offices of Clive Rivers
St Thomas U S VI
      Attorneyfor Appellant

Anna H Paiewonsky, Esq
Paiewonsky Law Firm, PLLC
St Thomas U S VI
      Attorney)?” Appellee


                                OPINION OF THE COURT
Tumbull e: a! v Tumbull                               2023 V1 17
S Ct Civ No 2019 0091
Opinion of the Court
Page 2 of 7


       CABRET, Associate Justice

1| 1      Kenneth Tumbull Jr appeals from the Superior Court’s order denying his post judgment

motion contesting the Virgin Islands Marshal’s execution on his truck For the following reasons,

we reverse the Superior Court’s order

                           I    FACTUAL AND PROCEDURAL BACKGROUND

112       This appeal stems from a judgment in the sum of $1,328,956 81 issued on July 15, 2019 in

favor of the Kenneth Tumbull Sr Revocable Trust and against Karen Tumbull Wheatley, and

Kenneth Tumbull Jr as well as Keith Klaria and Vivette Tumbull (0091 JA 64) ' The judgment

directed the sale of Parcel No 13BAA Estate Enighed, in St John (the “Property”), and ordered

the seizure of Karen’s one sixth interest in the proceeds from the Property sale, as well as the

seizure of any real or personal property owned by Karen (0091 IA 78 80) Finally, provided a

debt remained after Karen’s one sixth interest in the Property and personal property was seized,

Kenneth Jr , Keith, and Klaria’s equal one sixth interests in the proceeds from the sale of the

Property could also be seized 2 (009] JA 111 114)




1 By order entered on October 16 2020, this appeal was consolidated for argument with Case No 2019 0062

1 The July 15 2019 judgment reads in part

         ORDERED that if the Property cannot be sold by a real estate agent within 6 months fiom the date of this
         Order, then it must be seized and sold at a Marshal 5 sale by public auction to the highest bidder with the
         proceeds distributed pursuant to this Order; and it is further



         ORDERED that any and all of Karen Tumbull Wheatley’s one sixth interest in the proceeds fi'om the sale
         of the Property shall go to Plaintiff to satisfy Plaintiff’s one third interest in the rental income that was
         never distributed to Plaintiff and to pay down any balance on the $1,082,620 59 entered against her and in
         favor of Plaintiff; and it is further

         ORDERED that the V l Marshals are hereby authorized to seize any and all assets belonging to Karen
         Tumbull Wheatley, including any bank accounts at FirstBank Virgin Islands, Bank of Nova Scotia, Banco
Turnbull er al v Turnbull                            

S Ct Civ No 2019 009]
Opinion of the Court
Page 3 of 7


113     Following entry of the judgment, the Appellee Naomi Turnbull, as Successor Trustee of

the revocable trust, filed an amended praecipe requesting a writ of execution (0091 JA 82 83)

This praecipe identified nine real and personal property assets belonging to Karen Id In response,

the Superior Court issued a writ directing the Marshal to seize the “personal [assets] belonging to

said debtor      (0091 JA 85' Appellant s Br At 11 12) Although the Superior Court did not

specifically refer to Karen by name in the writ of execution, and instead used the words “said

debtor,” these words could only reasonably be understood to refer to Karen, since Appellee, in the

praecipe requesting the writ, had identified only Karen’s property Thus, execution pursuant to the

writ was limited to Karen’s Specified real and personal property (0091 JA 82 83, 85)

Notwithstanding the express terms of the judgment and the writ of execution, the Marshal seized

Kenneth Jr 3 truck on November 4 2019 (0091 Appellant 5 Br at 11 12) The following day

Kenneth Jr filed a motion requesting the Superior Court to order the release of his truck on the

basis that the seizure was wrongful and not in compliance with the court’s judgment, which only

authorized the seizure of all of Karen’s real and personal property followed by the seizure of the

one sixth interests in the Property held by Kenneth Jr , Keith, and Klaria (0091 JA 94 96) The

Superior Court denied that motion and Kenneth Jr timely appealed the Superior Court’s order

(0091 JA 123 0091 Not of Appeal)



        Popular de Puerto Rico, Merchants Commercial bank GERS pensions, retirement funds, and any real or
        personal property to satisfy the balance of the debt plus interest at 4% per annum until judgment is satisfied
        in full, and it is further

        ORDERED that if after Plaintiff receives Karen Tumbull Wheatley’s one sixth interest and the
        $1,082,620 59 judgment is not satisfied, Plaintiff shall receive any and all of Kenneth Jr , Keith, and
        Klaria’s one sixth interests in equal amounts to satisfy the outstanding balance of the judgment that
        represents Plaintiff’s one third interest
(0091 JA Ill “4)
Turnbull et a] v Turnbull                              2023 V1 17
S Ct Civ No 2019 0091
Opinion of the Court
Page 4 of 7


                           II JURISDICTION AND STANDARD OF REVIEW

1|4      This Court may not consider the merits of an appeal unless it first determines that it has

jurisdiction over the matter VI Gov’t Hosps & Health Faalmes Corp v Gov’t ofthe VI , 50

V I 276, 279 (V I 2008) “The Supreme Court [has] jurisdiction over all appeals arising from final

judgments, final decrees or final orders of the Superior Court ” V I CODE ANN tit 4, § 32(a) “A

denial of a post judgment motion is a final order from which an appeal may [lie] ” Estate of

Ludzngton v Jaber 54 V I 678 681 (V I 2011) See Nestor v Dependable Ins Co 535 So 2d

710, 710 (Fla Dist Ct App 1988) (a court’s grant or denial of a motion following the execution

on a judgment is considered an appealable final judgment in itself) (citing Orange Belt Packing

Co v International Agrzcultural Corp 150 So 264 265 (Fla 1933)) 3


                                                 III    DISCUSSION

                               A Seizure of Kenneth Jr ’s Truck by the Marshal


1|5      Kenneth Jr argues that the Superior Court erred in allowing the Marshal to seize his truck

to satisfy the judgment and erred in denying his post judgment motion requesting the release of

his truck (0091 Appellant 3 Br at 7 13)


116      First, Kenneth Jr argues that the Superior Court’s order denying his motion was invalid,

as the Marshal could not levy on the writ beyond the statutory sixty day period pursuant to 5 V I C



3 See also Nat'l DISC Corp v 0 Mel! 

 (6th Cir I952)( The writ ofexecution is not the
judgment Its function is to make effective the prior judgment of the Court ’) Juneau Spruce Corp v Int’l
Longshoremen's & Warehousemen’s Union, 

 (D Haw 1955) (“A writ of execution is not part
of thejudgment itself and must be distinguished from it It is a procedural devi[c]e issued by a court to assist a
successful litigant in obtaining the benefits of the judgment awarded him Its sole function is related to enforcing the
judgment of the court )(citations omitted) Cahn v Allen 8 A 2d 67 67 (N J Sup Ct 1939)( Here it is not a
judgment that is sought to be reviewed but subsequent proceedings thereon      Execution is no part of the
judgment It is rather an entirely subsequent proceeding in the cause ’ )
Turnbull er a! v Turnbull                    2023 V] 17
S Ct Civ No 2019 009I
Opinion of the Court
Page 5 of 7


§ 474 4 (0091 Appellant’s Br at 13) Kenneth Jr also argues that the execution violated his Fourth

Amendment constitutional rights against unlawful seizures (0091 Appellant’s Br at 18) But

Kenneth Jr waived these arguments as he failed to raise them in his November 5, 2019 motion to

the Superior Court requesting the release of his truck See V I R APP P 4(h) (“Only issues and

arguments fairly presented to the Superior Court may be presented for review on appeal           ”),

Alvarez v Est of Keel, 2020 V I 15, I 17 n 5 Consequently because Kenneth Jr waived these

arguments, we do not address them

117     Kenneth Jr also contends that the Superior Court erred in denying his post judgment

motion because the seizure of his truck was not authorized by the underlying judgment (0091

Appellant’s Br at 16) We agree

118     In the Virgin Islands, a writ ofexecution must substantially describe the judgment and state

the monetary amount due V I CODE ANN tit 5 § 473 The writ if against the property of a

judgment debtor or judgment debtors, must follow a particular procedure when seeking to satisfy

the underlying judgment Id First, if the judgment directs that particular property be sold, the writ

of execution must require the Marshal to sell such property and apply the proceeds as directed by

the judgment V I CODE ANN tit 5 § 473(1) See In re FzrstBank Puerto RICO 

at *2 (VI 2008)(unpublished) Otherwise, the judgment, with any attendant interest must be

satisfied out of the debtors’ personal property 1d If sufficient personal property cannot be found,

then the judgment must be satisfied out of the debtors real property 1d See Stack s v Gordon, 17

V I 177 185 (Terr Ct 1981) See also Wezss v Oat 

 (3d Cir 2016)

While a writ need not identify particular property, it cannot direct the seizure of property not


4 VI CODE ANN [it 5 §474
Turnbull et al v Turnbull                    2023 VI l7
S Ct Civ No 2019 0091
Opinion of the Court
Page 6 of 7


identified in the judgment See Great Bay Condomzmum Owners Ass n v Merryman, 

 at *2 (VI Super Aug 9 2010) see als0J.H. Jewelry Co v V] Jewelry& Repazrs 

 217 18 (VI Super Feb 24 1981) Further the execution may not exceed the scope and

terms of the underlying judgment Cztzmortgage Inc v Manmng, 

, at *2 (V I

Super July 7 2011)

1l9     Here the Superior Court judgment Specifically ordered the sale of the Property, followed

by the seizure of Karen’s proceeds from the sale and then by seizure of Karen’s real and personal

property (0091 IA 78 79) The seizure of assets does not extend to any property of Kenneth Jr ,

except for his one sixth interest in the Property conditioned on the judgment remaining unsatisfied

following execution upon Karen’s one sixth interest in the Property sale and execution upon her

personal assets (0091 JA 80; 95) Further, the writ never authorized the seizure of real or personal

propeIty belonging to Kenneth Jr     The writ only authorized the seizure of Karen’s property

Therefore, the seizure of Kenneth Jr ’3 truck was not lawful

                                        IV CONCLUSION

1[10    Because the Marshal’s seizure of Kenneth Jr ’3 truck exceeded the terms of the July 15

2019 judgment, and the writ did not authorize its seizure, the execution was invalid under V I

CODE ANN tit 5 § 473(1) Consequently the Superior Court erred by denying Kenneth Jr 5

motion requesting the release of his truck We therefore reverse the Superior Court’s denial of

Kenneth Jr ’3 motion and remand to the Superior Court with directions to enter an order requiring

the Marshal to release Kenneth Jr ’5 truck

Dated this 29th day of December, 2023

                                                               BY THE COURT
Turnbull e! a! V Turnbull          

S Ct Civ No 2019 0091
Opinion of the Court
Page 7 of 7



                                                      C            §~
                                                15’     7 9‘
                                   a             M    A M C 4 RET )
                                                A sociate Justic

ATTEST                                                     '/

VERONICAJ HANDY ESQ
Clerk ofithe Court

B§4AKOAALAO~ M
     Deputy Clerk ‘7

Dated         ‘02      a i   g 5