IN THE SUPREME COURT OF THE VIRGIN ISLANDS

Appeal No. 2019-0060

NELSON CRUZ, Appellant

____________________

ST. CROIX FINANCIAL CENTER, INC D/B/A TAMARIND REEF HOTEL. Appellee.

_____________________

On Appeal from The Superior Court of the Virgin Islands

Division of St. Croix

Superior Court Civ. No. 209/2018 (STX)

APPELLANT NELSON CRUZ' OPENING BRIEF

LAW OFFICES OF LEE J. ROHN AND ASSOCIATES, LLC Lee J. Rohn, Esquire

Rhea Lawrence, Esquire Counsel for Appellant

1108 King Street, Suite 3 Christiansted, St. Croix

U.S. Virgin Islands 00820-4933 (340)778-8855 Telephone(340)773-2954 Facsimile

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APPELLANT’S OPENING BRIEF

TABLE OF CONTENTS

I.  STATEMENTS .................................................................................................. 1 

A.  Jurisdictional Statement ................................................................................ 1 

1.  Subject-Matter Jurisdiction ........................................................................ 1 

2.  Appellate Jurisdiction ................................................................................ 1 

B.  Statement of the Issues Presented for Review .............................................. 2 

C.  Statement of the Standard of Review............................................................ 4 

D.  Statement of Related Cases and Proceedings ............................................... 4 

E.  Statement of the Case and Facts Necessary to Understand the Issues ......... 4 

A.  Summary of Argument .................................................................................. 6 

B.  The Superior Court erred in ordering arbitration where the unambiguous language of the arbitration agreement stated that only previously asserted claims were subject to arbitration. ..................................................................................... 7 

1.  The language was unambiguous, and the inquiry should end. .................. 7 

2.  The Superior Court implicitly rewrote the arbitration clause to compel arbitration. ......................................................................................................... 10 

3.  Any ambiguity was to be resolved against the drafter, SCFC. ................ 13 

4.  At a minimum, there was an issue of fact as to the intent of the parties that mandated discovery. .................................................................................. 16 

C.  The Superior Court erred in ordering arbitration where the Agreement was substantively unconscionable. .............................................................................. 20 

1.  The Agreement contained no provision that permitted Appellant to avoid expenses by showing financial inability to pay. ............................................... 20 

2.  Allen, not Green Tree, was the applicable binding authority. ................. 21 

III.  CONCLUSION AND PRAYER FOR RELIEF ............................................ 24 

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TABLE OF AUTHORITIES

Cases ACE American Insurance Company v. Guerriero, 738 Fed.Appx. 72, 77 (3rd 2018)

................................................................................................................................ 8 Alexander v. People of the Virgin Islands, 60 V.I. 486, 494 (V.I. 2014) .................. 4 Allen v. Hovensa, L.L.C., 59 V.I. 430, 440 (V.I. July 31, 2013) ...................... passim American Contractors Ins. Co. Risk Retention Group v. Zurich American Ins. Co.,

2011 WL 6065400, at *12 (S.D.Fla. Nov. 22, 2011) ........................................... 18 Arvidson v. Buchar, 2019 WL 4307580, at *16 (V.I.Super. Sept. 10, 2019) ... 12, 22 Assurance Co. of America v. Wall & Associates LLC of Olympia, 379 F.3d 557, 560

(9th Cir. 2004) ....................................................................................................... 13 AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643,

648 (1986) .......................................................................................................... 7, 8 Banks v. International Renal & Leasing Corporation, 55 V.I. 967 (2011) ............. 16 Barber v. R & R Realty, Inc., 2017 WL 1181522, at *3 (V.I.Super. Jan. 23, 2017)

.............................................................................................................................. 21 Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 711 (V.I. 2010) ........................... 4 Bouton v. Litton Industries, Inc., 423 F.2d 643, 646 (3rd Cir. 1970) ....................... 18 Cannonier v. Turner Intern., L.L.C., 2010 WL 697351, at *3 (D.V.I. Feb. 25, 2010)

.............................................................................................................................. 25 Chaffee v. Chaffee, 19 Wash.2d 607, 625 (Wash. 1943) ........................................ 13 Clemins v. GE Money Bank, 2012 WL 5868659, at *5 (E.D.Wis. Nov. 20, 2012) 29 College Park Pentecostal Holiness Church v. General Steel Corp., 847 F.Supp.2d

807, 812–813 (D.Md. 2012) ................................................................................. 28 Coneff v. AT & T Corp., 673 F.3d 1155, 1159 n.2 (9th Cir. 2012) .......................... 28 Crewe v. Rich Dad Educ., LLC, 884 F.Supp.2d 60, 78–79 (S.D.N.Y. 2012) ......... 28 Dean v. Draughons Jr. College, Inc., 917 F.Supp.2d 751, 756 (M.D.Tenn. 2013) 28 Dr. Tylur Arvidson v. Dr. William Buchar, 2020 WL 2614673, at *7 n.63 (V.I.Super.

April 30, 2020) ..................................................................................................... 11 Eagle Harbour Condominium Association v. Allstate Insurance Company, 2016 WL

499301, at *2 (W.D.Wash. Feb. 9, 2016) ............................................................ 12

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Fabrica De Tejidos La Bellota S.A. v. M/V MAR, 799 F.Supp. 546, 557, 27 V.I. 247, 265 (D.V.I. 1992) ................................................................................................. 18

Falls v. 1CI, Inc., 57 A.3d 521, 532 n.8 (Md.App. 2012) ....................................... 29 Gabriel v. Island Pacific Academy, Inc., 400 P.3d 526, 539–540 (Hawaii 2017) .. 30 Garcia v. Dell, Inc., 905 F.Supp.2d 1174, 1179 (S.D.Cal. 2012) ........................... 29 George v. People, 59 V.I. 368, 386 (V.I. 2013) ........................................................ 4 Gibson v. Nye Frontier Ford, Inc., 205 P.3d 1091, 1100–1101 (Alaska 2009) ...... 29 Great American Ins. Co. v. Norwin School Dist., 544 F.3d 229, 246–247 (3rd Cir.

2008) ..................................................................................................................... 14 Green Tree Fin. Corp. Alabama v. Randolph, 531 U.S. 79, 90-91 (2000) ......... 3, 27 Guardian Gen. Insur. Lmtd. v. Caribbean Food Services, 2016 WL 9224992, at *6

n.41 (V.I.Super. Oct. 24, 2016) ............................................................................ 17 Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3rd Cir. 2013)

.......................................................................................................................... 8, 22 Hill v. NHC HealthCare/Nashville, LLC, 2008 WL 1901198, at *14–15

(Tenn.Ct.App. Apr. 30, 2008) .............................................................................. 29 InterGen N.V. v. Grina, 344 F.3d 134, 142–143 (1st Cir. 2003) ............................... 8 James v. McDonald's Corp., 417 F.3d 672, 679 (7th Cir. 2005) ............................ 30 Johnston v. St. Croix Fin. Ctr., Inc., No. SX-17-CV-167, 2019 WL 4955968, at *2

(V.I. Super. Oct. 2, 2019) ................................................................................. 2, 19 Ladd v. Scudder Kemper Investments, Inc., 741 N.E.2d 47, 52 (Mass. 2001) .......... 8 Leonard v. Nationwide Mut. Ins., 499 F.3d 419, 429 (5th Cir. 2007) ...................... 17 McDonald v. Davis, 51 V.I. 573, 589–590 (D.V.I. 2009) ....................................... 18 McKenzie Check Advance of Fla., LLC v. Betts, 112 So.3d 1176, 1185–1187 n.7

(Fla. 2013) ............................................................................................................ 28 Meeting House Lane, Ltd. v. Melso, 427 Pa.Super. 118, 628 A.2d 854, 857 (1993)

.............................................................................................................................. 14 Mendez v. Puerto Rican Intern. Cos., Inc., 2010 WL 2654439, at *3 (D.V.I. July 1,

2010) ....................................................................................................................... 8 Mills-Williams v. Mapp, 67 V.I. 574, 582 (V.I. July 14, 2017) ................................ 1 Mo. Sav. Ass'n v. Home Sav. of Am., 862 F.2d 1323, 1326 (8th Cir. 1988) ............ 20

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Murray v. United Food and Commercial Workers Intern. Union, 289 F.3d 297, 304 (4th Cir. 2002) ...................................................................................................... 15

N.J. Regional Council of Carpenters v. Jayeff Const., 495 Fed.Appx. 230, 233 (3rd Cir. 2012) ............................................................................................................... 8

Najawicz v. People of the Virgin Islands, 58 V.I. 315, 323 (V.I. 2013) ................... 4 Ner Tamid Congregation of North Town v. Krivoruchko, 638 F.Supp.2d 913, 928–

929 (N.D.Ill. 2009) ............................................................................................... 14 Nowoj v. Mulalley, 465 P.2d 194, 196 (Wash.App. 1970) ...................................... 15 Ohio Valley Aluminum Company, LLC v. Hydratech Industries US, Inc., 2018 WL

1570792, at *2 (E.D.Ky. March 30, 2018) .......................................................... 27 Orman v. Citigroup, Inc., 2012 WL 4039850, at *3 (S.D.N.Y. Sept. 12, 2012) .... 29 Panorama Village Condominium Owners Ass'n Bd. of Directors v. Allstate Ins. Co.,

26 P.3d 910, 914 (Wash. 2001) ............................................................................ 15 Parilla v. IAP Worldwide Services, VI, Inc., 368 F.3d 269, 278–79 (3rd Cir. 2004)

.............................................................................................................................. 25 Patterson v. Bixby, 364 P.2d 10, 12 (Wash. 1961) .................................................. 13 Phillip v. Marsh-Monsanto, 66 V.I. 612, 624–625 (V.I. 2017) ............ 10, 12, 20, 21 Pro Tech Industries, Inc. v. URS Corp., 377 F.3d 868, 873 (8th Cir. 2004) ............ 30 Public Service Enterprise Group Inc., 130 F.R.D. 543 (D.N.J Feb. 21, 1990 ........ 23 Schindel v. Pelican Beach Inc., 16 V.I. 237, 250 (Terr.V.I. 1979) ......................... 17 Sharpe v. West Indian Co., Ltd., 118 F.Supp.2d 646, 650 n.4 (D.V.I. 2000) ......... 18 Shearer v. Cellco Partnership, 2016 WL 1043194, at *2 (W.D.Pa. March 16, 2016)

.............................................................................................................................. 28 Shervington v. Gallows Bay Hardware, Inc., 2009 WL 1650414, at *3 (D.V.I. June

11, 2009) ............................................................................................................... 25 St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007) .......... 4 Stevens v. Medical Facilities of America XXXII (32) Limited Partn., 2019 WL

3417035, at *3 (Va.Cir.Ct. June 27, 2019) ............................................................ 8 Stutler v. T.K. Constructors Inc., 448 F.3d 343, 346-347 (6th Cir. 2006) ......... 27, 30 Sunshine Shopping Center, Inc. v. Kmart Corp., 85 F.Supp.2d 537, 540 (D.V.I.

2000) ..................................................................................................................... 21

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Sunshine Shopping Center, Inc. v. LG Electronics Panama, S.A., 2018 WL 4558982, *1 (D.V.I. Sept. 21, 2018) .................................................................................... 23

Teamsters Indus. Employees Welfare Fund v. Rolls–Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir.1993) ................................................................................. 22

U.S. v. Seckinger, 397 U.S. 203, 210 (1970) ........................................................... 17 United Corp. v. Tutu Park Ltd., 55 V.I. 702, 719 n.14 (V.I. 2011) ............ 10, 20, 21 United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582

(1960) ..................................................................................................................... 7 Volunteer Firemen's Ins. Services, Inc. v. CIGNA Property and Cas. Ins. Agency,

693 A.2d 1330, 1339 (Pa.Super. 1997) ................................................................ 12 Weary v. Long Reef Condominium Association, 57 V.I. 163, 169–170 (V.I. 2012)

.............................................................................................................................. 10

Statutes 4 V.I.C. § 32 .............................................................................................................. 1 4 V.I.C. § 76(a) .......................................................................................................... 1

Treatises Restatement (Second) of Contracts § 206 “Interpretation Against the Draftsman”

(1981) ................................................................................................................... 15

Other Authorities David S. Schwartz, Enforcing Small Print to Protect Big Business: Employee and

Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L. Rev. 33, 55 (1997) ........................................................................................................ 14

Merriam-Webster Online Dictionary. 2020 .............................................................. 8

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I. STATEMENTS

A.  Jurisdictional Statement

1. Subject-Matter Jurisdiction

The Superior Court had subject-matter jurisdiction over this civil action

because it is a court of general jurisdiction without regard to the amount in

controversy.1

2. Appellate Jurisdiction

This Court has appellate jurisdiction over “all appeals arising from final

judgments, final decrees or final orders of the Superior Court[.]”2 The Superior

Court’s dismissal of this action without prejudice on March 2, 2020, constituted the

necessary finality for this Court’s jurisdiction.3 (See Superior Court Order of

Dismissal, entered March 2, 2020. ) Appellant Nelson Cruz (Appellant or Defendant

or Cruz) filed a timely Notice of Appeal. (JA1.)

1 See 4 V.I.C. § 76(a). 2 See 4 V.I.C. § 32. 3 Mills-Williams v. Mapp, 67 V.I. 574, 582 (V.I. July 14, 2017).

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B. Statement of the Issues Presented for Review

Issue One: Whether the Superior Court erred in ordering arbitration where

the unambiguous language of the Agreement relied upon by Appellee St. Croix

Financial Center (SCFC or Appellee or Defendant) to compel arbitration states that

only “previously asserted claims” were subject to arbitration. Plaintiff signed the

Agreement on November 7, 2016. (JA50). The claims at issue against Defendant

were not “previously asserted claims” and did not arise before the Plaintiff signed

the Agreement. (Complaint, JA22) The claims at issue arose in 2018. (JA22) Cruz

raised this issue before the Superior Court. (JA268-70; JA298-301). Appellee did

not address Appellant’s argument regarding the clear and unambiguous language of

the Agreement. The Superior Court acknowledged that Plaintiff raised this

argument before it, but ruled that the argument was “unpersuasive.”4 (JA6, n1.)

4 In the case, Johnston v. St. Croix Fin. Ctr., Inc., No. SX-17-CV-167, 2019 WL 4955968, at *2 (V.I. Super. Oct. 2, 2019)(Hon. Douglas A Brady, presiding), which involved the same Agreement, Defendant and Superior Court Judge, the Superior Court engaged in a more detailed analysis regarding the contract language at issue here. The Johnston Opinion was entered several months after the Superior Court entered its opinion in this case and after Cruz had filed his Notice of Appeal. The Superior Court stayed the Johnston matter pending arbitration instead of dismissal making that order non-final and non-appealable.

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With that determination, that the contract language argument was

“unpersuasive”, the Superior Court denied Appellee’s Motion seeking to stay

discovery as “moot” and denied Plaintiff leave to file a supplemental brief. (JA6,

n1.)

Issue 2: Whether the Superior Court erred in ordering arbitration where under

this Court’s precedent, Allen v. Hovensa, L.L.C., 59 V.I. 430, 440 (V.I. July 31,

2013), the Agreement failed to provide a provision allowing Appellant to avoid

expenses by showing financial inability to pay and was, therefore, substantively

unconscionable. (JA57-61; JA132; JA134.)

Plaintiff raised this issue before the Superior Court. (JA57-61). The Superior

Court implicitly rejected Plaintiff’s reliance on Allen and relied instead on United

States Supreme Court precedent, Green Tree Fin. Corp. Alabama v. Randolph, 531

U.S. 79, 90-91 (2000), as binding authority on this issue. As explained more fully

below, Green Tree does not govern this analysis, and the Superior Court erred in

relying on Green Tree instead of Allen and the body of territorial law in the Virgin

Islands that governed the issue of substantive unconscionability.

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C. Statement of the Standard of Review

Review of application of law is plenary.5 Review of the application of a mixed

question of law and fact is plenary.6 Discretionary decisions are generally reviewed

for abuse of discretion, unless the discretionary decision is based upon the

interpretation or application of a legal precept, or is a mixed question of law and

fact, in which case review is plenary.7 This Court has previously held that it exercises

plenary review of a court's determination that an arbitration clause is enforceable. 8

D. Statement of Related Cases and Proceedings This case has not previously been before this Court. Appellant Nelson Cruz

is unaware of any other related case pending in any other Court.

E. Statement of the Case and Facts Necessary to Understand the Issues

Plaintiff filed his Complaint on June 7, 2018, alleging three counts against

SCFC stemming from his employment there. (JA20). On July 9, 2018, SCFC filed

5 See St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). 6 See Najawicz v. People of the Virgin Islands, 58 V.I. 315, 323 (V.I. 2013). 7 See Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 711 (V.I. 2010); see also George v. People, 59 V.I. 368, 386 (V.I. 2013); Alexander v. People of the Virgin Islands, 60 V.I. 486, 494 (V.I. 2014). 8 Allen v. Hovensa, L.L.C., 59 V.I. 430, 436 (V.I. July 31, 2013).

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its Answer and Affirmative Defenses. (JA28). The parties engaged in the required

V.I.R. Civ. P. 26(f) planning meeting and filed a report. (JA196). The Superior Court

issued a Scheduling Order. (JA192.) The parties also exchanged extensive

discovery.9 (Defendant’s Initial Voluntary Disclosures, JA72; Plaintiff’s Initial

Voluntary Disclosures, JA106; Plaintiff’s Response to Defendant’s Demand for

Production of Documents, JA110; Plaintiff’s Response to Defendant’s First Set of

Interrogatories, JA125; Plaintiff’s First Set of Interrogatories to Defendant, JA150;

Plaintiff’s Demand for Production of Documents, JA176; Plaintiff’s Expert

Demand for Production of Documents, JA187). It was not until Plaintiff served his

discovery requests that SCFC moved to compel arbitration, which the Plaintiff

opposed based on the unenforceability of the arbitration agreement. (JA35, JA55,

JA267.) SCFC also moved to stay discovery pending arbitration, which Plaintiff

also objected because the arbitration agreement was not enforceable. (JA284,

JA294)

9 Ironically, SCFC freely, and before the Plaintiff, served interrogatoratories and requests for documents pursuant to V.I.R. Civ. P. 33, 34. (JA18)

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II. ARGUMENT

A. Summary of Argument

The Superior Court’s order compelling arbitration warrants reversal because

the unambiguous language of the arbitration clause at issue made the claims in this

litigation outside the scope of the arbitration clause. Even if the clause was held to

be ambiguous, the well-settled maxim

omnia praesumuntur contra proferentem required the Superior Court to construe the

ambiguous clause against the drafter, Appellee SCFC. At a minimum, under this

Court’s prior precedent, Phillip v. Marsh-Monsanto, 66 V.I. 612, 624–625 (V.I.

2017), there was a question of fact that warranted discovery and a trial as to the intent

of the parties.

Further, the Superior Court erred when it determined that the arbitration

clause was not substantively unconscionable relying, on U.S. Supreme Court

precedent, Green Tree Fin. Corp. Alabama v. Randolph, 531 U.S. 79, 90-91 (2000)

instead of this Court’s Allen v. Hovensa, L.L.C., 59 V.I. 430, 436 (V.I. July 31,

2013). This Court should hold that, consistent with Allen, any forced employment

arbitration clause, that fails to either (1) designate that the employer bear the costs

or (2) provide for a waiver of costs based on inability to pay, is substantively

unconscionable and unenforceable under Virgin Islands law.

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Reversal and remand is warranted.

B. The Superior Court erred in ordering arbitration where the

unambiguous language of the arbitration agreement stated that only previously asserted claims were subject to arbitration.

1. The language was unambiguous, and the inquiry should end.

It is a well-settled principle, “that ‘arbitration is a matter of contract and a

party cannot be required to submit to arbitration any dispute which he has not agreed

so to submit.’” See AT & T Technologies, Inc. v. Communications Workers of

America, 475 U.S. 643, 648 (1986)(quoting United Steelworkers of America v.

Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)).10 The question of arbitrability,

whether there is a duty to arbitrate a particular matter, is an issue for judicial

determination, and “[u]nless the parties clearly and unmistakably provide otherwise,

the question of whether the parties agreed to arbitrate is to be decided by the court,

not the arbitrator.” See AT & T Technologies, Inc., 475 U.S. at 649.11

10 Accord ACE American Insurance Company v. Guerriero, 738 Fed.Appx. 72, 77 (3rd 2018); InterGen N.V. v. Grina, 344 F.3d 134, 142–143 (1st Cir. 2003); Mendez v. Puerto Rican Intern. Cos., Inc., 2010 WL 2654439, at *3 (D.V.I. July 1, 2010); and Ladd v. Scudder Kemper Investments, Inc., 741 N.E.2d 47, 52 (Mass. 2001). 11 Accord, Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3rd Cir. 2013)(questions of arbitrability are presumed to be questions for judicial determination); N.J. Regional Council of Carpenters v. Jayeff Const., 495 Fed.Appx. 230, 233 (3rd Cir. 2012); and Stevens v. Medical Facilities of America XXXII (32) Limited Partn., 2019 WL 3417035, at *3 (Va.Cir.Ct. June 27, 2019).

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The language of the arbitration clause, which Appellee sought to enforce

states in relevant part, “I agree that I will settle any and all previously asserted

claims, disputes or controversies …” (JA50). Appellant briefed to the Superior

Court why the claims asserted, in this case, were not “previously asserted,” and as a

result were not arbitrable since they were not within the scope of the arbitration

clause. (JA268-270, JA 294, 298-301.)

Merriam-Webster Dictionary defines “previously” as meaning “going before

in time or order.”12 Considering that Appellant signed the page containing the

arbitration clause on November 7, 2016 (JA50), the natural reading of the language

“I agree that I will settle any and all previously asserted claims, disputes or

controversies …”, is that the scope is limited to claims which were asserted before

November 7, 2016.

Appellant pressed before the Superior Court that this Court has previously

held, when deciding how terms of an agreement are to be interpreted, that “[t]o

determine whether a contract is ambiguous, we resort to principles of contract

interpretation, keeping in mind that our primary purpose is to ascertain and give

12 See “previously”, Merriam-Webster Online Dictionary. 2020. https://www.merriam-webster.com/dictionary/previously (last viewed June 30, 2020).

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effect to the parties' objective intent.”13 (JA269, 299), and that “[w]here the language

of a contract is clear and unambiguous, the parties' intent must be derived from the

plain meaning of its terms.”14 (JA269, 299). The arbitration provision explicitly

states that only “previously asserted claims” are to be arbitrated, and the intent of

the parties is clear and unambiguous from the plain meaning of those words. The

Superior Court was required to find that Appellant’s claims were not previously

asserted and not subject to arbitration. (JA269-270, 294, 299-300). Appellee never

addressed the merits of this argument. It never argued or demonstrated that the

claims which it sought to have arbitrated were “previously asserted claims” such that

they fell within the scope of the arbitration clause.15

13 Phillip v. Marsh-Monsanto, 66 V.I. 612, 624–625 (V.I. 2017)(citing United Corp. v. Tutu Park Ltd., 55 V.I. 702, 719 n.14 (V.I. 2011)). 14 Phillip, 66 V.I. at 625 (citing Weary v. Long Reef Condominium Association, 57 V.I. 163, 169–170 (V.I. 2012)). 15 See JA35-36, Defendant’s Motion to Compel Arbitration and to Dismiss Matter for Lack of Jurisdiction, JA37-49, Defendant’s Memorandum in Support of Motion to Compel Arbitration and to Dismiss Matter for Lack of Subject Matter Jurisdiction, JA247-266, Reply to Plaintiff’s Opposition to Motion to Dismiss, JA274-280, Opposition to Plaintiff’s Motion for Leave to File Supplemental Briefing, JA284-285, Defendant’s Motion to Stay Pending Arbitration, and JA286-291, Defendant’s Memorandum- Motion to Stay Pending Arbitration.

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In its June 25, 2019 Order granting Appellee’s Motion to Compel Arbitration,

the Superior Court in a footnote held that Appellant’s argument was “unpersuasive.”

(JA6-13; JA6, n.1.). Reversal and remand is warranted.

2. The Superior Court implicitly rewrote the arbitration clause to compel arbitration.

To compel Plaintiff to assert his claims in arbitration based on the language

of the arbitration clause, the Superior Court essentially had to rewrite the arbitration

clause to exclude the relevant “previously asserted” language.(JA50.) Courts are

not permitted to revise a contract under the guise of contractual interpretation to give

it an interpretation that conflicts with the plain language used in the document.

When interpreting a contract, the Court’s “task is not to reveal the subjective intentions of the parties, but what their words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” In these instances, the “goal is to ascertain the intent of the parties and give it effect [because] [t]he cardinal principle of contract interpretation is that the intention of the parties must prevail unless it is inconsistent with some established rule of law.” The Court “will not rewrite the contract or give it a construction that conflicts with the plain, ordinary[,] and accepted meaning of the words used.”

See Dr. Tylur Arvidson v. Dr. William Buchar, 2020 WL 2614673, at *7 n.63

(V.I.Super. April 30, 2020)(emphasis added and internal citations and footnotes

omitted); Arvidson v. Buchar, 2019 WL 4307580, at *16 (V.I.Super. Sept. 10,

2019)(same); and Volunteer Firemen's Ins. Services, Inc. v. CIGNA Property and

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Cas. Ins. Agency, 693 A.2d 1330, 1339 (Pa.Super. 1997)(same). Accord Phillip, 66

V.I. at 627-628 (Virgin Islands Supreme Court recognized that courts are to follow

the plain meaning of a written agreement and abstain from imputing language or

interpretations not in accord with its plain meaning, and that it would be improper

for a court to rewrite that transaction by looking to evidence outside the four corners

of the contract to determine the intent of the parties); Eagle Harbour Condominium

Association v. Allstate Insurance Company, 2016 WL 499301, at *2 (W.D.Wash.

Feb. 9, 2016)(“Courts do not have the power to rewrite a contract that the parties

have deliberately made for themselves. … [T]he Court will not rewrite their ‘after a

loss occurs’ limitations language under the guise of interpretation.”)(citing Chaffee

v. Chaffee, 19 Wash.2d 607, 625 (Wash. 1943)16); Ner Tamid Congregation of North

16 See Chaffee, 19 Wash.2d 607, 625 (“It is elementary law, universally accepted, that the courts do not have the power, under the guise of interpretation, to rewrite contracts which the parties have deliberately made for themselves. The expressions of the various courts on the subject are tersely stated in 12 Am.Jur. 749, Contracts,12 Am.Jur. 749, Contracts, § 228, as follows: ‘Interpretation of an agreement does not include its modification or the creation of a new or different one. A court is not at liberty to revise an agreement while professing to construe it. Nor does it have the right to make a contract for the parties—that is, a contract different from that actually entered into by them. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed. Courts cannot make for the parties better agreements than they themselves have been satisfied to make or rewrite contracts because they operate harshly or inequitably as to one of the parties. If the parties to a contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity, the courts have

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Town v. Krivoruchko, 638 F.Supp.2d 913, 928–929 (N.D.Ill. 2009)(“It is not for a

court paternalistically to rewrite a party's agreement to include terms that they chose

not to make a part of their agreement, … and there is a strong presumption against

provisions that easily could have been included in the contract but were

not.”)(internal citations omitted); Great American Ins. Co. v. Norwin School Dist.,

544 F.3d 229, 246–247 (3rd Cir. 2008)(“As the case law makes clear, however, the

Court may not rewrite the contracts to provide protections that the contracts did not

themselves provide. See, e.g., Meeting House Lane, Ltd. v. Melso, 427 Pa.Super.

118, 628 A.2d 854, 857 (1993) (noting that ‘the parties have the right to make their

own contract, and it is not the function of a court to rewrite it or to give it a

construction in conflict with the accepted and plain meaning of the language

used’).”); Murray v. United Food and Commercial Workers Intern. Union, 289 F.3d

297, 304 (4th Cir. 2002)(circuit court rejected defendant’s request that the court

“look beyond the language of the arbitration clause”, because to do so “would go …

to rewriting the contract, which is not the proper role of this Court.”); Panorama

no right, by a process of interpretation, to relieve one of them from disadvantageous terms which he has actually made.’ See, also, 17 C.J.S., Contracts, § 296, p. 702.”). Accord Assurance Co. of America v. Wall & Associates LLC of Olympia, 379 F.3d 557, 560 (9th Cir. 2004)(internal citations omitted)(same); and Patterson v. Bixby, 364 P.2d 10, 12 (Wash. 1961) (same)(internal citations and quotation marks omitted).

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Village Condominium Owners Ass'n Bd. of Directors v. Allstate Ins. Co., 26 P.3d

910, 914 (Wash. 2001)(state supreme court recognized as “elementary law,

universally accepted, that the courts do not have the power, under the guise of

interpretation, to rewrite contracts which the parties have deliberately made for

themselves.”)(internal citations and quotation marks omitted)(en banc); and Nowoj

v. Mulalley, 465 P.2d 194, 196 (Wash.App. 1970)(“It is not the function of the courts

to rewrite or make contracts between parties, nor is it to impose an obligation upon

one party that he did not assume.”)(internal citations omitted).

3. Any ambiguity was to be resolved against the drafter, SCFC.

Even if this Court were to find the arbitration clause ambiguous, then in the

alternative, under settled law17 as briefed by Appellant below, any ambiguity in the

17 To the extent a Banks v. International Renal & Leasing Corporation, 55 V.I. 967 (2011), analysis is required here regarding this issue of contract interpretation, Appellant submits that utilizing the maxim that a contract should be construed most strongly against the drafter represents the soundest rule for the Virgin Islands .If the Supreme Court of the Virgin Islands has not resolved an issue of common law, Courts must engage in the three-factor analysis provided in Banks before adopting a common law rule. This analysis involves “first examining which common law rule Virgin Islands courts have applied in the past; next identifying the rule adopted by a majority of courts of other jurisdictions; and then finally—but most importantly—determining which common law rule is soundest for the Virgin Islands.” As applied here, based on the citations contained in this Section II.B.3, this maxim has been applied by courts of the Virgin Islands in the past. It also represents a maxim employed by a majority of courts in other jurisidictions. Finally, and most importantly, it is the soundest rule for the Virgin Islands.

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language must be construed against Appellee who drafted the language of the

arbitration clause and then imposed it on Appellant on a take it or leave it basis.18

(JA269-270, JA 300-301)(citing Guardian Gen. Insur. Lmtd. v. Caribbean Food

Services, 2016 WL 9224992, at *6 n.41 (V.I.Super. Oct. 24, 2016)(internal citations

omitted); and Schindel v. Pelican Beach Inc., 16 V.I. 237, 250 (Terr.V.I. 1979).19

18 The situation described above meets the standard definition of adhesion contract and highlights the inherent disparity in bargaining power between Appellant and Appellee in such situation:

An adhesion contract is well understood as: (1) a standardized (typed or printed) form document (2) drafted by, or on behalf of, one party which (3) participates routinely in numerous like transactions and (4) presents the form to the other, “adhering” party on a take-it-or-leave-it basis; (5) the adhering party enters into few transactions of the type in question, and (6) the adhering party signs the form after dickering over the few terms, if any, that are open to bargaining. Certain features implicit in this definition bear emphasis. All discussions of adhesion contracts recognize the characteristic disparity of bargaining power between the drafter and the adherent. Professor Rakoff, by pointing out that the adhering party “enters into few transactions of the type in question,” brings out a second disparity not always mentioned: disparate knowledge. The adhering party is disadvantaged by relative ignorance of the implications of the adhesive form term, and of the likelihood and nature of a future legal dispute in which the form term would be invoked.

See David S. Schwartz, Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L. Rev. 33, 55 (1997). 19 Accord U.S. v. Seckinger, 397 U.S. 203, 210 (1970)(Supreme Court recognized “general maxim that a contract should be construed most strongly against the drafter, …”); Leonard v. Nationwide Mut. Ins., 499 F.3d 419, 429 (5th Cir. 2007) (“If a court determines that ambiguity inheres in the policy language, the familiar maxim omnia praesumuntur contra proferentem requires the court to construe ambiguous terms in favor of the policyholder.”); Bouton v. Litton Industries, Inc., 423 F.2d 643, 646 (3rd Cir. 1970)(“[A]s the draftsman the agreement will be

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Appellee was the one who chose to draft an arbitration clause that it imposed

in a contract of adhesion on the Appellant. (JA50). If the actual language of the

arbitration clause did not fully cover what Appellee subjectively wanted it to cover,

then Appellee has only itself to blame for any lack of clarity in the language it

drafted. It would be highly improper for a court to rewrite Appellee’s contractual

language through the guise of contract interpretation to cover a situation that goes

beyond the scope of what is actually covered under the plain language of the

arbitration clause.20

construed strictly against it.”); American Contractors Ins. Co. Risk Retention Group v. Zurich American Ins. Co., 2011 WL 6065400, at *12 (S.D.Fla. Nov. 22, 2011)(recognizing the doctrine of omnia praesumuntur contra proferentem, which means all things are presumed against the offeror); Sharpe v. West Indian Co., Ltd., 118 F.Supp.2d 646, 650 n.4 (D.V.I. 2000)(“After examining the pertinent terms of the contract, the Court will apply the maxim omnia praesumuntur contra proferentem and favor that meaning which least benefits the drafter, if it finds one or more provisions are subject to multiple reasonable meanings.”); Fabrica De Tejidos La Bellota S.A. v. M/V MAR, 799 F.Supp. 546, 557, 27 V.I. 247, 265 (D.V.I. 1992)(district court noted general rule that contract terms are strictly construed against their drafter); McDonald v. Davis, 51 V.I. 573, 589–590 (D.V.I. 2009)(“[A] contract should be construed strictly against the draftsman.”). See also Restatement (Second) of Contracts § 206 “Interpretation Against the Draftsman” (1981) (“In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.”). 20 In an opinion issued in Johnston v. St. Croix Financial Center, 2019 WL 4955968 (V.I.Super. Oct. 2, 2019), a separate case involving a different plaintiff but the same defendant, SCFC, and the same Superior Court judge, the Superior Court confronted the same arbitration clause at issue here and enforced it. In so doing, the Superior Court provided the analysis which it failed to do in the June 25, 2019 Order. (JA6.)

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4. At a minimum, there was an issue of fact as to the intent of the parties that mandated discovery and trial.

Alternatively, if the Superior Court determined that it would reject Plaintiff’s

arguments and ignore the plain and unambiguous language of the clause, or refuse

to adhere to the maxim that ambiguities must be resolved against the drafter, then

under the governing norms of contractual interpretation, when a contract is

ambiguous, the meaning of the contract’s terms is a question of fact for a jury. See

Phillip, 66 V.I. at 624 (The parties’ intent regarding the meaning of a contract is

determined from the entire contractual instrument and relevant external

circumstances)(citing Mo. Sav. Ass'n v. Home Sav. of Am., 862 F.2d 1323, 1326 (8th

Cir. 1988))

Appellee, the defendant in Johnston, in an Orwellian “war means peace” type of argument encouraged the Superior Court there, without a shred of evidentiary support, to rewrite the arbitration clause and pretend that the word “asserted” in the clause really means its exact opposite, “unasserted”, under a “scrivener’s error” theory never argued in this case and never adopted by this Court, to justify the wholesale rewriting of the actual text of the arbitration clause. Johnston, 2019 WL 4955968, at *2 (“SCFC contends that the word ‘asserted’ should properly read ‘unasserted’ and that the mistake was a ‘scrivener’s error.’”). Appellant understands it may be improper for this Court to examine the Superior Court’s analysis of the arbitration clause in Johnston when none of that analysis was contained in the June 25, 2019 Order below compelling arbitration in this case. (JA6). However, even if this Court were to do so, the Superior Court’s ruling still constitutes reversible error since its reading out of the actual language of the arbitration clause which states “previously asserted claims”, is wholly inconsistent with the required proper method of contractual interpretation set forth in the legal precedent briefed above.

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Interpreting contracts and ascertaining the meaning of contractual language,

involves mixed questions of law and fact. See Phillip, 66 V.I. at 624; and United

Corp. v. Tutu Park Ltd., 55 V.I. 702, 707 (V.I. 2011). “Ordinarily, when the terms

of a contract are unambiguous, the Superior Court treats the issue of the meaning of

those terms as a question of law, but if the terms are ambiguous, the issue of the

meaning of the terms becomes a question of fact.” United Corp., 55 V.I. at 707.

Accord Phillip, 66 V.I. at 624 (same)(internal citations omitted); Barber v. R & R

Realty, Inc., 2017 WL 1181522, at *3 (V.I.Super. Jan. 23, 2017)(if the terms of

contract are ambiguous, the issue of the meaning of the terms becomes a question

of fact.); and Sunshine Shopping Center, Inc. v. Kmart Corp., 85 F.Supp.2d 537, 540

(D.V.I. 2000)(if court determines contract is ambiguous, the interpretation of such

contract is left to the finder of fact to resolve the ambiguity in light of extrinsic

evidence).

This Court has clarified that “[T]o decide whether a contract is ambiguous,

we do not simply determine whether, from our point of view, the language is clear

... Before making a finding concerning the existence or absence of an ambiguity, we

consider the contract language ... and the extrinsic evidence offered in support of

each interpretation. Extrinsic evidence may include ... the conduct of the parties that

reflects their understanding of the contract's meaning.” See United Corp., 55 V.I. at

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707-708 (citing Teamsters Indus. Employees Welfare Fund v. Rolls–Royce Motor

Cars, Inc., 989 F.2d 132, 135 (3d Cir.1993)); and White v. Spenceley Realty, LLC,

53 V.I. 666, 678-679 (V.I. 2010)(V.I. Supreme Court found that in determining

whether a written term of a contract was ambiguous trier of fact could find from a

party’s actions, notwithstanding its testimony to the contrary, that such party

understood it had a contractual duty to act recognizing that “[e]xtrinsic evidence may

include ... the conduct of the parties that reflects their understanding of the contract's

meaning.” )(citing Teamsters Indus. Employees Welfare Fund, 989 F.2d at 135).

Courts find that allowing discovery is necessary to ascertain the actual intent

of the parties as to the question of fact regarding the meaning of the contractual

language at issue. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d

764, 773-776 n.5 (3rd Cir. 2013)(circuit court recognized that “[p]re-arbitration

discovery has been held necessary in other contexts”, such as the likelihood that

proceeding with arbitration will result in prohibitively expensive costs, whether an

arbitration clause is unconscionable, whether there was a meeting of the minds

regarding the arbitrability of certain claims. The circuit court agreed that the parties

were entitled to discovery on the question of arbitrability before there was further

briefing on such question, and recognized that, “Indeed, any time the court must

make a finding to determine arbitrability, pre-arbitration discovery may be

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warranted.”)(internal citations omitted); Sunshine Shopping Center, Inc. v. LG

Electronics Panama, S.A., 2018 WL 4558982, *1 (D.V.I. Sept. 21, 2018)(district

court denied motion to compel arbitration and granted the plaintiff’s request “for

limited discovery on the issue of arbitrability.”); and Public Service Enterprise

Group Inc., 130 F.R.D. 543 (D.N.J Feb. 21, 1990) (district court granted motion to

compel discovery regarding evidence of a party’s prior knowledge, course of

performance, and possible admissions against interest as to how a contractual

provision was to be interpreted).

If this Court on de novo review, were to disagree with Appellant’s position

that the language of the arbitration clause is unambiguous, or that any ambiguity

should be resolved against the drafter, SCFC, it should nevertheless reverse the

Superior Court’s order compelling arbitration, and remand this action to the Superior

Court to enable the parties to engage in discovery on the issue of arbitrability and a

trial on that issue.

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C. The Superior Court erred in ordering arbitration where the Agreement was substantively unconscionable.

1. The Agreement contained no provision that permitted Appellant to avoid expenses by showing financial inability to pay.

Virgin Island courts, including this Court, have consistently held that an

arbitration agreement is unconscionable if it makes the arbitral forum prohibitively

expensive as a means of seeking redress for the weaker party. Allen v. Hovensa,

L.L.C., 59 V.I. 430, 440–441 (V.I. 2013); Parilla v. IAP Worldwide Services, VI,

Inc., 368 F.3d 269, 278–79 (3rd Cir. 2004); Cannonier v. Turner Intern., L.L.C.,

2010 WL 697351, at *3 (D.V.I. Feb. 25, 2010); and Shervington v. Gallows Bay

Hardware, Inc., 2009 WL 1650414, at *3 (D.V.I. June 11, 2009). And, one

established reason for finding an arbitration provision substantively unconscionable

is if the Agreement fails to provide for a waiver of expenses. In Allen, this Court

upheld an arbitration provision that required the Appellant to pay half of the

arbitration costs because “the agreement also provides that ‘[u]pon a written request

to the Arbitrator by EMPLOYEE demonstrating financial hardship or financial

inability to pursue the claim, EMPLOYER will be responsible for the remaining

expenses and costs of the arbitration.’” Allen v. Hovensa, L.L.C., 59 V.I. 430, 440

(V.I. July 31, 2013).

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Plaintiff, a person of limited financial means, had no real choice but to sign

the defendant’s arbitration provision since it was offered by defendant on a take it

or leave it basis. (JA50, 57, 133-134, 136-139, 148.) The arbitration clause at issue,

unlike the one upheld in Allen, had no waiver of costs provisions where financial

hardship is demonstrated. (JA50.) Plaintiff impressed on the Superior Court that

the arbitration clause lacked the required Allen protections and those utilized by the

American Arbitration Association, where employers, such as SCFC, are required to

bear all costs of arbitration. (JA57-61) Appellee opposed, and the Superior Court

rejected Plaintiff’s arguments. (JA9.) This Court should hold that, consistent with

Allen, any forced employment arbitration clause, that fails to either (1) designate that

the employer bear the costs or (2) provide for a waiver of costs based on inability to

pay, is substantively unconscionable and unenforceable under Virgin Islands law.

This rule provides the necessary clarity to govern employer conduct in the context

of employment forced arbitration.

Reversal and remand is warranted.

2. Allen, not Green Tree, was the applicable binding authority.

In its June 25, 2019 Order, at page 4, the Superior Court cited the U.S.

Supreme Court case of Green Tree Fin. Corp. Alabama v. Randolph, 531 U.S. 79,

90-91 (2000) as if it were binding authority for the proposition that “an agreement

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to arbitrate is not rendered unenforceable simply because it says nothing about

arbitration costs, and thus fails to provide protection from potentially substantial

costs of pursuing claims in the arbitral forum.” (JA9.)

In Stutler v. T.K. Constructors Inc., 448 F.3d 343, 346-347 (6th Cir. 2006), a

case which involved only state law claims, the circuit court found that Green Tree

did not apply since Green Tree was “limited by [its] plain language to the question

of whether an arbitration clause is enforceable where federal statutorily provided

rights are affected. In this case, no federally protected interest is at stake.” Stutler,

448 F.3d at 346.

Like Stutler, the Complaint, in this case, does not assert any federal claims

and alleges claims arising solely under Virgin Island law. (JA20.) A majority of

courts hold that under these circumstances, Green Tree Fin. does not apply since its

holding is limited to the context of federal statutory claims. See Ohio Valley

Aluminum Company, LLC v. Hydratech Industries US, Inc., 2018 WL 1570792, at

*2 (E.D.Ky. March 30, 2018); Shearer v. Cellco Partnership, 2016 WL 1043194, at

*2 (W.D.Pa. March 16, 2016); McKenzie Check Advance of Fla., LLC v. Betts, 112

So.3d 1176, 1185–1187 n.7 (Fla. 2013); Dean v. Draughons Jr. College, Inc., 917

F.Supp.2d 751, 756 (M.D.Tenn. 2013); Coneff v. AT & T Corp., 673 F.3d 1155, 1159

n.2 (9th Cir. 2012); Crewe v. Rich Dad Educ., LLC, 884 F.Supp.2d 60, 78–79

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(S.D.N.Y. 2012); College Park Pentecostal Holiness Church v. General Steel Corp.,

847 F.Supp.2d 807, 812–813 (D.Md. 2012); Garcia v. Dell, Inc., 905 F.Supp.2d

1174, 1179 (S.D.Cal. 2012); Clemins v. GE Money Bank, 2012 WL 5868659, at *5

(E.D.Wis. Nov. 20, 2012); Orman v. Citigroup, Inc., 2012 WL 4039850, at *3

(S.D.N.Y. Sept. 12, 2012); Falls v. 1CI, Inc., 57 A.3d 521, 532 n.8 (Md.App. 2012);

Gibson v. Nye Frontier Ford, Inc., 205 P.3d 1091, 1100–1101 (Alaska 2009); Hill

v. NHC HealthCare/Nashville, LLC, 2008 WL 1901198, at *14–15 (Tenn.Ct.App.

Apr. 30, 2008); Stutler, 448 F.3d at 346-347; and Pro Tech Industries, Inc. v. URS

Corp., 377 F.3d 868, 873 (8th Cir. 2004).21

The Superior Court’s reliance on Green Tree instead of Allen led to its holding

that the arbitration agreement was not substantively unconscionable. Reversal and

remand is warranted.

21 See also Gabriel v. Island Pacific Academy, Inc., 400 P.3d 526, 539–540 (Hawaii 2017)(“It is an open question, however, as to whether Green Tree applies in cases where claimants challenge arbitration as a forum for vindicating state statutory rights.); James v. McDonald's Corp., 417 F.3d 672, 679 (7th Cir. 2005) (“It remains unclear whether the rationale of Green Tree applies to situations that do not involve the assertion of federal statutory rights. Green Tree itself thrice referenced the vindication of “federal statutory claims” in reaching its holding. The majority of federal circuits ruling on the issue have concluded that Green Tree does not apply where a claimant seeks to vindicate only state statutory claims, as Gabriel seeks in this case.”).

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III. CONCLUSION AND PRAYER FOR RELIEF

For all the reasons raised herein, Appellant requests that the Court reverse the

Superior Court’s order compelling arbitration. Appellant also requests all other

relief this Court deems appropriate consistent with the issues fairly raised here and

in the Superior Court.

RESPECTFULLY SUBMITTED LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Appellant

DATED: June 30, 2020 BY: /s/ Rhea R. Lawrence Lee J. Rohn, Esq. V.I. Bar No. 52 Rhea R. Lawrence, Esq. V.I. Bar No. 1192 1108 King Street, Suite 3 Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com rhea@rohnlaw.com

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CERTIFICATE OF SUPREME COURT BAR MEMEBERSHIP

The undersigned hereby certifies that pursuant to Virgin Islands Rule of

Appellate Procedure 22(l) she is a member of the bar of the Supreme Court of the

Virgin Islands.

DATED: June 30, 2020 BY: /s/ Rhea R. Lawrence

Lee J. Rohn, Esq. V.I. Bar No. 52 Rhea R. Lawrence, Esq. V.I. Bar No. 1192 1108 King Street, Suite 3 Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com rhea@rohnlaw.com

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CERTIFICATE OF WORD COUNT COMPLIANCE

The undersigned hereby certifies that APPELLANT’S OPENING BRIEF

complies with Virgin Islands Rule of Appellate Procedure 22(f) and contains 5, 729

words towards the 7, 800-word limit.

DATED: June 30, 2020 BY: /s/ Rhea R. Lawrence

Lee J. Rohn, Esq. V.I. Bar No. 52 Rhea R. Lawrence, Esq. V.I. Bar No. 1192 1108 King Street, Suite 3 Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com rhea@rohnlaw.com

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that on June 30, 2020, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:

Andrew C. Simpson, Esq. Law Offices of Andrew Simpson, P.C. 2191 Church Street, Suite 5 Christiansted, St. Croix, VI 00820 Email Address: asimpson@coralbrief.com Attorney For: St. Croix Financial Center, Inc.

BY: /s/ Rhea R. Lawrence (rl)

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