For Publication
IN THE SUPREME COURT OF THE VIRGIN ISLANDS
FIRSTBANK PUERTO RICO
Appellant/Petitioner/Defendant,
S.Re: Ct.ST-2015-CV-00533
Civ. No. 2025-0218
Vv Re: ST-2016-RV-00002
HARTHMAN LEASING III, LLLP,!
Appellee/Respondent/Plaintiff.
On Appeal from the Superior Court of the Virgin Islands
Division of St. Thomas & St. John
Superior Court Judge: Hon. Carol Thomas-Jacobs
Argued: July 14, 2026
Filed: September 29, 2026
Cite as: 2026 VI 22
BEFORE RHYS S. HODGE, Chief Justice; HAROLD W.L. WILLOCKS, Associate
Justice; and DENISE M. FRANCOIS, Associate Justice
APPEARANCES
Christopher Allen Kroblin, Esq. (Argued)
Shari N. D’Andrade, Esq
Kroblin D’ Andrade, P.C
St. Thomas, U.S.V.I
Attorney for Appellant/Petitioner/Defendant
Kanaan L. Wilhite, Esq. (Argued)
Treston E. Moore, Esq
Frederick A. Johnson, Jr., Esq
Moore Dodson Russell & Wilhite, P.C
St. Thomas, U.S.V.1
Attorney for Appellee/ Respondent/Plaintiff
OPINION OF THE COURT
WILLOCKS, Associate Justice
' The procedural history of this appeal reflects that the parties and the courts below have referred to the appellee both as Harthman Leasing III, LLLP, a limited liability limited partnership, and as Harthman Leasing III, LLP, a limited liability partnership. The record confirms that its correct name and entity designation is Harthman Leasing III, LLLP
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qi Appellant FirstBank Puerto Rico (“FirstBank”) appeals from the March 12, 2024 order of
the Superior Court of the Virgin Islands (“Superior Court”) affirming “in all respects” the March
9, 2016 judgment of the Magistrate Division of the Superior Court (“Magistrate Division”) granting
restitution to Appellee Harthman Leasing II], LLLP (“Harthman”) in the 2015 forcible entry and
detainer action filed by Harthman against FirstBank.’ In that order, the Superior Court stated that it
? In 2016, FirstBank filed its petition for review pursuant to the applicable version of Superior Court Rule 322—titled “Review of Magistrate Decisions; Appeals” —which had been promulgated by the Presiding Judge of the Superior Court in 2010 (“2010 Rule 322”) “to adopt permanent procedures governing its internal review processes [of the magistrate decisions].” Jn re Order Amending the Rules Governing Review of Magistrate Decisions, 2010 V.I. LEXIS 105, at *4 (Nov. 22, 2010)
The 2010 Rule 322, inter alia, created the Appellate Division of the Superior Court (“Appellate Division”), which “administer[ed] all appeals and reviews filed in the [Superior] Court” from magistrate decisions. /d. at *5-6
In 2018, this Court amended 2010 Rule 322 in several respects, resulting in the current version of Superior Court Rule 322 (“Current Rule 322”). As relevant here, the Current Rule 322—itled Appeals in Original Jurisdiction Cases”——eliminated all references to the “Appellate Division and omitted the former rule’s terminology concerning “review.” See In re Amends. to the Rule Governing Appeals from the Magis. Div., 2018 V.I. Supreme LEXIS 45 (Nov. 15, 2018). Current
Rule 322 instead characterizes proceedings challenging magistrate decisions arising from the Magistrate Division’s original jurisdiction under 4 V.I.C. § 123(a) as “appeals,” which are
commenced by filing a notice of appeal rather than a petition for review. Compare V.1. SUPER. CT R. 322.1(a) (2010) (“Final orders or judgments of magistrates resolving completely the merits of cases which came before them pursuant to their original jurisdiction, as provided by 4 V.LC. § 123(a), are immediately reviewable by judges of the Superior Court of the Virgin Islands.”
(emphasis added)), with V.I. SUPER. CT. R. 322(a) (2018) (“Final orders or judgments of the
Magistrate Division resolving completely the merits of cases which came before them pursuant to their original jurisdiction, as provided by 4 V.I.C. § 123(a), are immediately appealable to judges of the Superior Court of the Virgin Islands, as well as any interlocutory orders appealable by law.” (emphasis added)); compare V.I. SUPER. CT. R. 322.1(b)(1)(A) (2010) (“Review from a
magistrate’s decision may be obtained by filing a Petition for Review with the Clerk of the
Superior Court.” (emphasis added)), with V.I. SUPER. CT. R. 322(b)(1) (2018) (“Appeal from a magistrate judge’s decision may be obtained by filing a notice of appeal with the Clerk of the Superior Court within fourteen (14) days of entry of the judgment or order from which appeal is sought.” (emphasis added))
For clarity and consistency with the Current Rule 322, we refer to FirstBank’s petition for review as its intermediate appeal from the Magistrate Division’s March 9, 2016 judgment in the 2015 FED Action and refer to the Superior Court as the intermediate appellate court that adjudicated that appeal. See Browne v. Gore, 57 V.1. 445, 453 n.5 (V.I. 2012) (explaining that “fa Superior Court judge essentially acts as an intermediate appellate court, with this Court serving as a second level FirstBank v. Harthman 2026 VI 22
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affirmed ‘for the same reasons stated by the Magistrate Division” in the accompanying
memorandum opinion, and dismissed with prejudice FirstBank’s appeal from the Magistrate
Division’s judgment. For the reasons detailed below, we dismiss the appeal as moot
I. BACKGROUND?
42 Harthman owns Parcel Nos. 17B, 17C, 17D, and 17E, Estate Smith Bay, St. Thomas, United
States Virgin Islands (“Parcel 17B,” “Parcel 17C,” “Parcel 17D,” and “Parcel 17E,” respectively,
and collectively, “Estate Smith Bay Property”). In 2003, Harthman, as lessor, and East End Plaza,
LLC (“EEP”), as lessee, executed a lease for Parcel 17B. The lease was later amended to include
additional property by a December 11, 2003 letter agreement specifically identifying Parcel 17C
and Parcel 17D (together, “2003 Lease’’). Thereafter, EEP executed a construction loan agreement
with FirstBank, secured by a priority leasehold mortgage against EEP’s interest in the 2003 Lease
q3 In 2011, EEP defaulted under both the 2003 Lease with Harthman and the loan agreement
with FirstBank. Following EEP’s default under the 2003 Lease, Harthman sent EEP and FirstBank
a notice of non-payment of rent on June 13, 2011, and a notice of default on July 26, 2011
Meanwhile, after EEP defaulted under the loan agreement, FirstBank commenced a debt and
foreclosure action against EEP on November 22, 2011. FirstBank later decided to accept EEP’s
assignment of the 2003 Lease rather than foreclose on the leasehold interest
of appellate review”); see also In re Estate of Gibbs, 2025 VI 24, 417 (explaining that “the Superior Court effectively acts as an ‘intermediate appellate court? and we form the ‘second level’ of review’)
3 To construct a more comprehensive and accurate background, this Court takes judicial notice of the dockets and filings in the underlying cases. See Cianci v. Chaput, 64 V.I. 682, 690 n.2 (V.I 2016) (recognizing that courts may take judicial notice of other courts’ dockets and papers); cf: King y. Appleton, 61 V.I. 339, 348 (V.L. 2014) (“[T]he Superior Court may take judicial notice of the existence of a document that has been filed with it in another proceeding.) (internal quotation marks and citation omitted)
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q4 On March 27, 2012, EEP and FirstBank executed an assignment agreement titled
“Assignment of Lease in Lieu of Foreclosure” (“Assignment Agreement”). The recital of the
Assignment Agreement indicated, inter alia, that EEP and FirstBank “have entered into a multi
credit settlement agreement dated March 27, 2012...wherein, among other things and for beneficial
consideration, EEP has agreed to assign the [2003] Lease to [FirstBank] in lieu of [FirstBank]
asserting its rights under a foreclosure of the [leasehold mortgage].” Under the Assignment
Agreement, EEP assigned and transferred to FirstBank “any and all of its rights, title, and interest
in and to the [2003] Lease.” In exchange, FirstBank released and forever discharged EEP “from all
claims, demands, obligations, and liabilities...arising under the [loan agreement].” FirstBank
therefore became the successor in interest to EEP’s rights, obligations, and interests under the 2003
Lease
495 Thereafter, in an April 2, 2012 letter, FirstBank advised Harthman that, “in lieu of
[FirstBank] having to foreclose under the loan documents,” EEP had assigned its rights under the
2003 Lease to FirstBank. FirstBank further stated that the purpose of the letter was “to specifically
discuss the issues regarding the amounts of square footage comprised in the ‘Leased Premises.’”
Specifically, FirstBank asserted that it “must proceed on the basis that the Leased Premises never
included Parcel 17E” and that the monthly rent, arrearages, penalties, and interest under the 2003
Lease “must be revised
FirstBank’s 2012 Civil Action
q 6 On May 17, 2012, after FirstBank and Harthman were unable to resolve their dispute over
whether Parcel 17E was included in the 2003 Lease—and, consequently, the amount of rent
allegedly in arrears—Harthman issued a notice terminating the 2003 Lease based on FirstBank’s
alleged failure to timely cure or satisfy earlier notices of default. That same day, FirstBank FirstBank v. Harthman 2026 VI 22
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commenced an action seeking a declaratory judgment that Parcel 17E was never part of the 2003
Lease (“2012 Civil Action”)
47 On August 10, 2012, FirstBank amended its complaint to add claims for breach of contract,
impairment of security interest, and unjust enrichment. On September 14, 2012, Harthman filed an
answer to FirstBank’s amended complaint and included counterclaims for breach of contract, debt,
possession of the premises, and breach of warranty to defend. Of particular relevance here,
Harthman’s counterclaims expressly identified all four parcels comprising the Estate Smith Bay
Property. Specifically, Harthman alleged in Count III that FirstBank was required to cure EEP’s
defaults under the 2003 Lease as a condition precedent to lawfully obtaining possession of the
Estate Smith Bay Property. According to Harthman, FirstBank’s failure to do so caused “possession
of the property as developed [to] revert[] to Harthman.” Harthman therefore requested an order
awarding it possession of the Estate Smith Bay Property and “acknowledging FirstBank’s
dispossession.”
q8 During the pendency of the 2012 Civil Action, FirstBank initially continued paying
Harthman rent for Parcel 17B, Parcel 17C, and Parcel 17D under the 2003 Lease through August
2014. Beginning in September 2014, however, FirstBank deposited the rent for those parcels into
an escrow account held by one of its attorneys rather than paying Harthman directly
Harthman’s 2015 FED Action
499 In 2015, while the 2012 Civil Action remained pending, Harthman commenced a forcible
entry and detainer action against FirstBank pursuant to the Virgin Islands forcible entry and detainer
statutes, 28 V.I.C. §§ 781-795 (2015 FED Action”). In that action, Harthman sought restitution of
Parcel 17B, Parcel 17C, and Parcel 17D based on FirstBank’s alleged failure to pay rent due under
the 2003 Lease. This appeal arises from the 2015 FED Action
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410 On October 27, 2015, FirstBank moved to dismiss the 2015 FED Action on the ground that
it was “barred by the Priority of Action Doctrine because the same claim is pending in [the 2012
Civil Action].” Harthman opposed the motion, and FirstBank filed a reply. On December 7, 2015,
the Magistrate Division‘ entered an order denying FirstBank’s motion to dismiss.°
411 On January 22, 2016, the parties appeared before the Magistrate Division for a hearing on
Harthman’s claims against FirstBank. The Magistrate Division heard testimony from witnesses and
admitted various exhibits into evidence. At the conclusion of the hearing, after hearing the parties’
respective closing arguments, the Magistrate Division took the matter under advisement
412 On March 9, 2016, the Magistrate Division entered a judgment granting restitution of Parcel
17B, Parcel 17C, and Parcel 17D to Harthman (“March 9, 2016 Judgment”). In the accompanying
memorandum opinion (“March 9, 2016 Opinion”), and together with the March 9, 2016 Judgment,
(collectively, the “FED Judgment”), the Magistrate Division sets forth the reasoning for its ruling.®
4 Harthman’s 2015 FED Action came before the Magistrate Division pursuant to their original
jurisdiction. See 4 V.I.C. § 123(a)(6) (“Each magistrate judge may hear forcible entry and
detainer and landlord and tenant actions....”’); see also, In re the Estate of Small, 57 V.1. 416, 428 (V.I. 2012) (“Under {4 V.LC. §]}123(a), the Legislature provided the Magistrate Division the original jurisdiction to hear certain kinds of cases without the oversight of a Superior Court judge.”)
> FirstBank moved for reconsideration of the December 7, 2015 order, which was subsequently
denied by the Magistrate Division
® In the March 9, 2016 Opinion, the Magistrate Division identified “two real issues...presented for...determination”: (i) “[w]hether Parcel [17]C was part of the leased premises, along with Parcels [17]B and [17]D, from which Harthman seeks FirstBank’s eviction” and (ii) “[w]hether Harthman’s alleged interference with FirstBank’s ‘unfettered right to assign the lease’ denies FirstBank a permissible use thereof that would entitle it to withhold payment of its rent.”
The Magistrate Division concluded that “the leased premises include [Parcel 17B, Parcel 17C, and Parcel 17D].” It then determined that “Harthman has proved a prima facie case over which this Court can exercise FED Jurisdiction, i.e., an unexpired written lease under which rent is due and owing by the tenant.” The Magistrate Division then addressed FirstBank’s defense that Harthman’s insistence that Parcel 17E was included in the 2003 Lease interfered with FirstBank’s asserted unfettered right to assign the lease. Specifically, FirstBank argued that Harthman’s position regarding Parcel 17E caused interested parties to walk away from negotiations because they could FirstBank v. Harthman 2026 VI 22
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FirstBank’s 2015 FED Action Intermediate Appeal
q13 On March 16, 2016, FirstBank filed a petition for review with the Superior Court’
challenging the Magistrate Division’s FED Judgment granting restitution of Parcel 17B, Parcel
17C, and Parcel 17D to Harthman (‘2015 FED Action Intermediate Appeal”).® In its petition,
FirstBank presented four issues for review of the Magistrate Division’s FED Judgment: (i)
Whether the Magistrate erred in ruling that [FirstBank] has no legitimate right to withhold payment
of rent under any reasonable interpretation of existing law on rent withholding. More specifically
whether Petitioner’s specifically bargained for unfettered right of assignment of the lease
constitutes a legitimate permissible use and enjoyment of the lease through which Respondent could
and did interfere by its wrongful inclusion of Parcel 17E as a part of the leased premises under the
lease’; (ii) “Whether the Magistrate exceeded his statutory authority in interpreting complex and
disputed terms of the lease”; (iii) “Whether the Magistrate erred in ruling that the Parallel Action
Doctrine was not a bar to [Harthman’s 2015 FED Action], when Harthman was already seeking
possession of the same premises in a plenary action filed in Superior Court years before the
initiation of the FED action”; and (iv) “Whether the Magistrate erred in entering Judgment for
not determine their potential rental obligations, thereby preventing FirstBank from making what it characterized as a permissible use of the leased premises—its asserted unfettered right to assign the 2003 Lease. The Magistrate Division rejected that defense, concluding that “Harthman has not interfered with FirstBank from making any permissible use [of the leased property],” and that FirstBank therefore “has no legitimate right to withhold payment of rent.”
Having determined that it “has not been ousted from exercising FED jurisdiction because
FirstBank has not established any colorable defense by which it has the legitimate right to withhold payment of rent and to escrow same,” the Magistrate Division ultimately concluded that Harthman was entitled to restitution of Parcel 17B, Parcel 17C, and Parcel 17D
7 The Superior Court judge who presided over FirstBank’s 2015 FED Action Intermediate Appeal was not the same Superior Court judge who presided over FirstBank’s 2012 Civil Action
8 See supra, footnote 2
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Restitution of the premises when [FirstBank] had escrowed all rent owed in its attorneys escrow
account and, therefore, the Magistrate could have ordered the funds deposited into Court or paid to
[Harthman],” and “was it error for the Magistrate to grant restitution in an FED action when the
[FirstBank] had paid all amounts due for the premises sought into escrow and put those funds at the
direction of the Court.” Thereafter, FirstBank filed its brief in support of its petition for review, and
Harthman filed its opposition brief.
4914. On March 12, 2024, the Superior Court entered an order (“March 12, 2024 Order’)
affirming the Magistrate Division’s FED Judgment “‘in all respects and for the same reasons stated
by the Magistrate Division [therein]” and dismissing FirstBank’s 2015 FED Action Intermediate
Appeal with prejudice
§15 On October 15, 2025, FirstBank filed a “Motion for Entry of [March 12, 2024] Order” on
the ground that the order “has not been properly entered on the docket because it was not
electronically filed in accordance with its terms and the Virgin Islands Electronic Filing Rules.”
FirstBank requested the court “to direct that it be properly served on all Counsel of record so that
it may be properly entered and thus ripen to a final appealable order.”
416 On the same date, October 15, 2025, FirstBank contemporaneously filed an “Alternative
Motion for Leave to File Notice of Appeal [under V.I. R. App. P. 5(a)(8)], or for Relief Under V.I
R. Civ. P. 60(b)...so that the Order may be entered anew for purposes of initiating the appeal period,
on the ground that the Order was not served on its Counsel.”
417 On October 27, 2025, the Superior Court entered an order granting both of FirstBank’s
October 15, 2025 motions and extending “the time for filing an appeal in this matter [for] thirty
(30) days from the entry of this Order.” The court explained that “FirstBank has demonstrated good FirstBank v. Harthman 2026 VI 22
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cause for an extension of time to file its Notice of Appeal” and that “an extension is warranted to
ensure due process, fairness and equity.”
418 Harthman did not oppose either of FirstBank’s October 15, 2025 motions seeking to
establish or reopen the period in which FirstBank could appeal the March 12, 2024 Order more than
one year after its entry. Nor did Harthman seek reconsideration of, or otherwise challenge, the
Superior Court’s October 27, 2025 order granting those motions and extending FirstBank’s time to
appeal
FirstBank’s 2015 FED Action Appeal
419 On October 15, 2025, FirstBank also contemporaneously filed a notice of appeal from the
Superior Court’s March 12, 2024 Order
420 On November 18, 2025, in light of the Superior Court’s October 27, 2025 order, FirstBank
filed an amended notice of appeal from the Superior Court’s March 12, 2024 Order
421 On April 7, 2026, FirstBank filed its appellant’s brief. In that filing, FirstBank first asserts
that its notice of appeal——filed more than a year after the March 12, 2024 Order—was nevertheless
timely and that this Court possesses jurisdiction over the appeal. It then argues that the Superior
Court erred in its March 12, 2024 Order affirming the Magistrate Division’s FED Judgment
because: (i) the Superior Court affirmed “without addressing the material legal issues presented [in
FirstBank’s petition for review]”; (ii) the Magistrate Division lacked subject matter jurisdiction to
determine FirstBank’s “Restatement defenses [which] required inquiry into equitable rights,” or
alternatively, the 2015 FED Action “warranted transfer to the Civil Division [of the Superior
Court]” (iii) the Magistrate Division erred in “holding that FirstBank had no right to escrow under
the Restatement”; (iv) “the Priority of Action doctrine required the dismissal of the [2015 FED FirstBank vy. Harthman 2026 VI 22
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Action]”; and (v) the Magistrate Division abused its discretion by “ordering restitution when all
rent had been timely escrowed.”
422 FirstBank therefore requests that “this Court reverse the [Superior Court’s] March 12, 2024
Order [] and remand with instructions to dismiss the [2015] FED [AJction.” Alternatively,
FirstBank requests that “this Court should reverse and remand with instructions to enter judgment
in FirstBank’s favor and direct payment of the escrowed funds to Harthman.” As a further
alternative, FirstBank requests that “this Court...vacate the order of restitution and remand with
instructions to order turnover of the escrowed funds in lieu of restitution.”
423 Inresponse, Harthman filed its appellee’s brief on May 12, 2026. Harthman does not dispute
this Court’s jurisdiction but argues that FirstBank’s notice of appeal was untimely. It then responds
to each of FirstBank’s five asserted grounds for reversal
424 On May 21, 2026, FirstBank filed its reply brief, in which it buttresses its contention that
its notice of appeal was timely and reiterates its arguments that the Superior Court erred in affirming
the Magistrate Division's FED Judgment
425 OnJuly 14, 2026, the parties appeared before this Court for oral argument
II. DISCUSSION
A. Jurisdiction
426 The Revised Organic Act of 1954 provides this Court with appellate jurisdiction over “all
appeals from the decisions of the courts of the Virgin Islands established by local law ” 48
U.S.C. § 1613a(d). Title 4, section 32(a) of the Virgin Islands Code vests this Court with jurisdiction
over “all appeals arising from final judgments, final decrees or final orders of the Superior Court
[of the Virgin Islands}, or as otherwise provided by law.” 4 V.I.C. § 32(a). An “order that disposes
of all claims submitted to the Superior Court [of the Virgin Islands] is considered final for the FirstBank v. Harthman 2026 VI 22
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purposes of appeal.” Jung v. Ruiz, 59 V.I. 1050, 1057 (V.I. 2013) (citing Matthew v. Herman, 56
V.L. 674, 677 (V.I. 2012)); see also Beachside Assocs., LLC v. Fishman, 53 V.1. 700, 706-07 (V.1
2010) (‘The general rule is that a decision is considered final when it ‘ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.’”); Estate of George \
George, 50 V.I. 268, 274 (V.I. 2008). “This Court, being an appellate court, is a court of
limited jurisdiction, and must be satisfied of its own appellate subject matter jurisdiction before it
considers the merits of an appeal.” World Fresh Mkts., LLC v. Henry, 71 V.1. 1161, 1167 (V.I
2019) (citations omitted)
427 In this instance, the parties agree that this Court has jurisdiction over FirstBank’s appeal
from the Superior Court’s March 12, 2024 Order, but dispute whether FirstBank timely filed its
notice of appeal under Rule 5(a) of the Virgin Islands Rules of Appellate Procedure (“Appellate
Rule 5(a)”)
428 The parties’ agreement as to jurisdiction, however, “cannot be dispositive, for ‘it is well
established that parties may not stipulate to either the presence or absence of subject matter
jurisdiction.’”” SBRMCOA, LLC v. Beachside Assocs., LLC, 8. Ct. Civ. No. 2015-0053, 2015 V.I
Supreme LEXIS 42, at *6 (Dec. 28, 2015) (unpublished) (quoting Williams v. People, 58 V.1. 341
346 n.4 (V.I. 2013) (citing H&H Avionics, Inc. v. V.1. Port Auth., 52 V.1. 458, 460 (V.I. 2009)))
We therefore independently examine our jurisdiction
429 The Superior Court’s March 12, 2024 Order affirmed the Magistrate Division’s FED
Judgment “‘in all respects” and disposed of all claims before the Superior Court. “An order from a
Superior Court judge affirming a final order of the Magistrate Division is a final order from which
an appeal! lies.” Magras v. People, 79 V.1. 857, 868 (V.I. 2024) (citing Julien v. Matthew, 78 V1 FirstBank v. Harthman 2026 VI 22
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947, 956 (V.I. 2024)). Accordingly, the Superior Court’s March 12, 2024 Order is final for purposes
of 4 V.LC. § 32(a)
930 Further, any dispute concerning FirstBank’s compliance with the time limits under
Appellate Rule 5(a) does not affect this Court’s subject matter jurisdiction. Appellate Rule 5(a) sets
forth the thirty-day time limit for filing a notice of appeal in a civil case, V.I. R. APP. P. 5(a)(1),
and identifies certain circumstances under which that time may be extended or otherwise adjusted
see e.g., V.I.R. APP. P. 5(a)(4), (8), (10), and (11). “Because no statute requires that a civil litigant
file a notice of appeal to this Court within thirty days or prohibits this Court from considering moot
appeals, neither requirement relates to this Court’s subject matter jurisdiction > Vazquez v.
Vazquez, 54 V.I. 485, 489-90 (V.I. 2010)
431 Similarly, “[iJt is well established that time limits set exclusively by court rules are mere
claims-processing rules which do not affect a court's subject-matter jurisdiction even if they may
result in dismissal if violated.” Gov't of the V.I. v. Crooke, 54 V.1. 237, 253-54 (V.I. 2010) (citing
Bowles v. Russell, 551 U.S. 205, 210-11 (2007) (citing Kontrick v. Ryan, 540 U.S. 443 (2004))
Thus, the time limits set by Appellate Rule 5(a) are merely claims-processing rules, as opposed to
a jurisdictional requirement. See Peters v. People, 60 V.1. 479, 481 n.1 (V.I. 2014) (observing that
“despite our previous case law describing a timely appeal as a jurisdictional requirement, we have
long since ‘reconsidered this approach and now treat the time limits established by [Appellate] Rule
5 as claims processing rules’” (quoting Bryan v. Gov't of the V.I., 56 V.1. 451, 455 (V.L 2012)); see
also 3RC & Co., Inc. v. Boynes Trucking Sys., Inc., 2026 VI 8, J12(stating that “the timeliness of
the appeal does not affect this Court’s subject matter jurisdiction” since [Appellate} Rule S5(a)(1)
is merely a claims-processing rule, as opposed to a jurisdictional requirement” (citations
omitted)); V.1.R. APP. P. 1(i) (“These rules shall not be considered to extend or limit the jurisdiction FirstBank v. Harthman 2026 VI 22
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of the Supreme Court of the Virgin Islands as established by law.”); cf People v. Freeman, 57 V.1
336, 340 (V.I. 2012) (recognizing that the thirty-day statutory appeal deadline set forth in 4 V.I.C
§ 33(d)(5) is jurisdictional (citing First American Development Group/Carib, LLC v. WestLB AG,
55 V.I. 594, 601 (V.1. 2011)))
432 Accordingly, because the March 12, 2024 Order is a final order appealable under 4 V.I.C
§ 32(a), and because any noncompliance with Appellate Rule 5(a) does not affect this Court’s
subject matter jurisdiction, we conclude that this Court has jurisdiction over FirstBank’s appeal
See World Fresh Mkts., LLC v. Palermo, 74 V.1. 455, 460 (V.I. 2021) (citing Joseph v. Daily News
Publishing Co., Inc., 57 V.1. 566, 578 (V.1. 2012))
B. Timeliness of FirstBank’s 2015 FED Action Appeal?
433 Before reaching the merits, however, we address Harthman’s argument that FirstBank’s
notice of appeal was untimely under Appellate Rule 5(a). Although the time limits set by Appellate
Rule S(a) are merely claims-processing rules rather than a jurisdictional requirement,
noncompliance may still result in dismissal of an appeal. See Crooke, 54 V.I. at 253-54. Because
the rule is nonjurisdictional, an appellee “may waive a defect in the timeliness of a notice of appeal
if it fails to raise the issue at the earliest opportunity.” Montgomery v. Virgin Grand Villas St. John
Owners’ Ass'n, 71 V1. 1119, 1129 (VI. 2019) (citing Bryan, 56 V.I. at 456; see Hodge v
Bluebeard's Castle, Inc., 62 V.1. 671, 687 n.8 (V.I. 2015) (“A party waives application of a claims
° While we ultimately dismiss this appeal as moot, we nevertheless exercise our discretion to address the timeliness issues. Like jurisdictional questions, we do not believe that claims-processing rules need be addressed in any particular order. Cf In re Hechinger Inv. Co. of Del., Inc., 335 F.3d 243, 250-51 (3d Cir. 2003). Although considering mootness first might eliminate the need to
consider the timeliness of either of FirstBank’s appeals, we choose to address them to provide guidance in future cases, particularly when the speedy remedy provided in FED proceedings makes them particularly susceptible to mootness dismissals. See, e.g., Bourne Law Office, PLLC v. KLB Realty LLC, 2026 VI 20 42
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processing rule when it fails to raise the issue at the first opportunity prior to the case becoming
fully briefed.”’); see also In re Guardianship of Smith, 54 V.1. 517, 524 n.5 (V.1. 2010) (“[BJecause
claims-processing rules are equivalent to the statute of limitations and other affirmative defenses,
litigants who seek to invoke a claims-processing rule to dismiss or limit an appeal must do so at the
first opportunity prior to the case becoming fully briefed.” (citations omitted))
434 But “(where a party timely raises a claims processing rule that was violated by its opponent,
we have no choice but to dismiss based on it.” Henry, 71 V.1. at 1174 (quoting Prosser v. Public
Serv. Comm'n, 56 V.1. 391, 403 n.9 (V.I. 2012) (citing Gov't
of the VI. v. Martinez, 54 V.1. 900 (3d
Cir. 2010))). Nevertheless, even if an appeal is untimely and the timeliness challenge has not been
waived, the nonjurisdictional nature of Appellate Rule 5(a) permits this Court, in appropriate
circumstances, to exercise its discretion to hear the appeal. See Simpson v. Bd. of Dirs. of Sapphire
Bay Condos. W., 62 V.1. 728, 731-32 (V.I. 2015) (recognizing that the Court may exercise its
discretion to hear an untimely appeal because [Appellate] Rule 5 is a claims-processing rule rather
than a jurisdictional requirement)
€35 In this instance, Harthman asserted in its appellee’s brief that FirstBank’s notice of appeal
was untimely under Appellate Rule 5{a). Because the appellee’s brief was Harthman’s first filing
in this Court, Harthman did not waive that challenge by failing to raise it at its first opportunity on
appeal. See Montgomery, 71 V.I1. at 1129 (citation omitted). We therefore consider the two grounds
on which Harthman contends that FirstBank’s notice of appeal was untimely
Harthman’s Timeliness Arguments
£36 Inits appellee’s brief, Harthman first argues that “FirstBank simply acted too late to benefit
from the provisions of [Appellate] Rule S(a)(10).” Second, Harthman argues that “the Superior
Court lacked the authority to extend the time for FirstBank’s appeal.”
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937 FirstBank responds that Harthman’s arguments rest on the erroneous premise that Appellate
Rule 5(a)(10) provides “the exclusive remedy when a party does not receive notice of an appealable
order.” According to FirstBank, “nothing in Rule 5(a)(10) [] displaces the Superior Court’s
authority to grant relief under [Appellate Rule] 5(a)(8) or [Virgin Islands Rule of Civil Procedure]
60(b).” FirstBank further notes that the Superior Court’s October 27, 2025 order granted relief
under both provisions and that Appellate Rule 5(a)(8) permits an extension of the time to appeal
upon a showing of good cause. Finally, FirstBank adds that Harthman “did not oppose FirstBank’s
motion below or argue that Appellate Rule 5(a)(10) was the exclusive remedy” and instead “raises
that position for the first time here.”
§38 This Court has held that “[a]ppellate courts generally refuse to consider issues that are raised
for the first time on appeal Furthermore, on appeal to this Court, the scope of our review is
restricted to those questions that were properly preserved for review in the trial court and further
raised on appeal according to the rules of this Court.” Bryan, 56 V.I. at 457 (quoting St. Thomas
St. John Bd. of Elections v. Daniel, 49 V.1. 322, 335-36 (V.I. 2007)); 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.”); see also V.I. R. APP. P. 22(m) (“Issues that were (1) not raised or objected to before the
Superior Court, (2) raised or objected to but not briefed, or (3) are only adverted to in a perfunctory
manner or unsupported by argument and citation to legal authority, are deemed waived for purposes
of appeal, except that the Supreme Court, at its option, may notice an error not presented that affects
substantial rights.”); Henry, 71 V.I. at 1172 (noting that for this Court to consider an issue on appeal
“‘a party needs only to raise an issue [to allow] the Superior Court to address it and take whatever
action is necessary in the first instance in order to fairly present the issue and preserve it for
appeal””) (citations omitted))
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439 Here, Harthman did not oppose FirstBank’s motions seeking to establish or reopen the
appeal period, nor did it challenge the Superior Court’s October 27, 2025 order granting that relief.
Thus, Harthman never presented to the Superior Court its current arguments that FirstBank failed
to comply with Appellate Rule 5(a)(10) and that the court lacked authority to extend the time for
filing the notice of appeal. Consequently, FirstBank had no opportunity to respond to those
arguments below, and the Superior Court had no opportunity to consider or rule upon them. As
FirstBank notes in its reply brief, Harthman raises its Appellate Rule 5(a)(10) position for the first
time in this appeal
440 Wehave previously explained that “[t]he rules that require a litigant to brief and support his
argument, both here and before the Superior Court, are not mere formalistic requirements. They
exist to give the Superior Court the opportunity to consider, review, and address an argument before
it is presented to this Court.” Cornelius v. Bank of Nova Scotia, 67 V.I. 806, 823 (V.I. 2017)
(quoting Simpson v. Golden, 56 V.1. 272, 280 (V.I. 2012)). “That requirement permits the Superior
Court to develop the record so that, in the event of an appeal, this Court can make informed rulings
Id. (quoting Simpson, 56 V.I. at 281). Accordingly, because Harthman did not preserve for appellate
review its arguments that FirstBank failed to comply with Appellate Rule 5(a)(10) and that the
Superior Court lacked authority to extend the time for filing the notice of appeal, those arguments
are deemed waived. See V.I. R. App. P. 22(m); see also V.I. R. App. P. 4(h)
941 Although the failure to raise an issue before the Superior Court generally results in waiver,
this Court may consider an unpreserved issue when exceptional circumstances exist. See V.f. Port
Auth. v. Joseph, 49 V.1. 424, 428 (V.1. 2008) (“It is well established that failure to raise an issue in
the [trial] court constitutes a waiver of the argument on appeal. There is an exception to the general
rule of waiver where exceptional circumstances are shown to exist.’’) (internal quotation marks and FirstBank v. Harthman 2026 VI 22
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citations omitted). Harthman, however, has neither identified nor demonstrated any exceptional
circumstances warranting departure from the general rule of waiver
4/42 Having rejected Harthman’s timeliness challenge, we next consider whether the subsequent
proceedings in the 2012 Civil Action and the ensuing appeal rendered this appeal moot. Although
neither party has raised mootness, the circumstances presented here require us to consider the issue
C. Mootness of FirstBank’s Appeal
443 Inits appellant’s brief,'° FirstBank acknowledges that a related appeal arising from the 2012
Civil Action (2012 Civil Action Appeal”) “involve[d] the same parties and disputes concerning
the [2003] Lease, including, inter alia, the scope of the leased premises, the inclusion of Parcel 17
E, and FirstBank’s rights and obligations under the lease and related agreements.” FirstBank further
notes that this Court had issued an opinion in that appeal on August 29, 2025, see 2025 VI 18, but
that FirstBank’s petition for rehearing remained pending
444 In its appellee’s brief, Harthman similarly acknowledges this Court’s August 29, 2025
opinion in the 2012 Civil Action Appeal and FirstBank’s pending petition for rehearing. Harthman
also provides additional detail regarding the rulings in that related proceeding, stating that, in the
2012 Civil Action, “FirstBank was evicted from the same Property (i.e. Parcel Nos. 17B, 17C, and
17D) for failing to cure EEP’s default,” and that in the 2012 Civil Action Appeal, “this Court
affirmed FirstBank’s eviction for failing to cure EEP’s default.”
'© Rule 22 of the Virgin Islands Appellate Procedure requires parties to provide “a statement of whether this case or proceeding has been before the Supreme Court previously, and whether the party is aware of any other case or proceeding that is in any way related, which has been completed, is pending, or is about to be presented before the Supreme Court or any other court, state or federal” and “[i}f the party is aware of any previous or pending appeals before the Supreme Court arising out of the same case or proceeding, the statement should identify each such case.” V.I. R. APP. P 22(b)(3)(i)
FirstBank v. Harthman 2026 VI 22
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945 Therecord of the 2012 Civil Action and the 2012 Civil Action Appeal reflects,'! in relevant
part, the following chronology: (i) on June 4, 2021, the Superior Court adjudicated Count III of
Harthman’s counterclaim, concluding that Parcel 17E “never became part of the Leased Premises”
under the 2003 Lease and awarding Harthman possession of Parcel 17B, Parcel 17C, and Parcel
17D—the same parcels at issue in the underlying 2015 FED Action—based on FirstBank’s failure
to pay rent; (ii) on July 6, 2021, FirstBank filed a notice of appeal challenging, among other rulings,
the Superior Court’s possession determination; (iii) on November 8, 2021, the Superior Court
entered amended findings of fact and conclusions of law, in which it maintained its determination
regarding Parcel 17E but revised its rationale for awarding Harthman possession of those parcels,
concluding that FirstBank’s failure to cure EEP’s default entitled Harthman to possession; (iv) on
December 2, 2021, FirstBank filed a first amended notice of appeal; (v) on August 29, 2025, this
Court issued its opinion and judgment adjudicating the 2012 Civil Action Appeal and left the
Superior Court’s possession ruling undisturbed, see FirstBank P.R. v. Harthman Leasing III, LLLP,
2025 VI 18 441, 49;'* (vi) on September 12, 2025, FirstBank petitioned for rehearing, seeking
'! This Court takes judicial notice of the dockets and filings in the 2012 Civil Action and the 2012 Civil Action Appeal. See Cianci, 64 V.1. at 690 n.2; cf King, 61 V.I. at 348
'2 In the 2012 Civil Action Appeal, we considered, inter alia, FirstBank’s following challenges to the Superior Court’s possession ruling: (i) “whether the Superior Court erroneously granted dispossession of Parcels 17-B, 17-C, and 17-D based on FirstBank’s failure to cure debts or pay rent for Parcel 17-E”; and (ii) “whether the Superior Court erroneously expanded the scope of Hartman’s counterclaim to include Parcels 17-B, 17-C, and 17-D.” FirstBank P.R., 2025 VI 18, q18
First, we rejected FirstBank’s argument that “the Superior Court erred by granting possession of the parcels to Harthman based on FirstBank’s failure to fully cure EEP’s defaults or pay rent on Parcel 17-E.” /d. at §40. We explained that “[{nJeither the initial findings [nJor the amended findings make any mention of Parcel 17-E,” and that FirstBank’s argument—that “it was improperly
dispossessed based on its failure to cure EEP’s defaults or pay rent on 17-E”—was “simply incorrect.” /d. at 442. Rather, the Superior Court had “definitively found that ‘FirstBank’s tender of $344,055.17, on May 17, 2012 failed to cure EEP’s default on Parcels 17-B, 17-C, and 17-D FirstBank v. Harthman 2026 VI 22
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reconsideration of this Court’s disposition of its claims relating to the possession ruling; and (vii)
on July 2, 2026, this Court denied FirstBank’s petition for rehearing. '°
946 That sequence of events raises a threshold question: whether the judgment awarding
Harthman possession of Parcel 17B, Parcel 17C, and Parcel 17D in the 2012 Civil Action—which
this Court left undisturbed on appeal before denying FirstBank’s petition for rehearing—rendered
moot FirstBank’s present appeal from the Superior Court’s affirmance of the Magistrate Division’s
FED Judgment awarding Harthman restitution of those same parcels
Id. We also noted that “[b]ecause FirstBank did not advance any other supported argument
explaining how dispossession was premised on Parcel 17E, [we] deemed the issue waived.” Jd
Second and finally, we rejected FirstBank’s argument that “Harthman’s counterclaims only
included claims regarding Parcel 17-E and, therefore, the pleadings were not broad enough to include claims for unpaid rent on the other three parcels,” as well as its related contention that “the Superior Court erred in allowing the issue of escrowing rent for Parcels 17-B, 17-C, and 17-D to proceed to trial as those issues were not properly before the Superior Court.” /d. at §43. We explained that in the Virgin Islands, a notice pleading jurisdiction, “Harthman’s counterclaim clearly references a broad range of disputed fees for all parcels, and this should have placed FirstBank on notice that disputes could arise concerning all parcels.” /d. at 946. We further explained that “[a]lthough FirstBank had not begun to escrow rent payments when Harthman filed the counterclaim, the counterclaim encompassed damages for all parcels,” and “[b]ecause this issue was sufficiently pled concerning rental payments for all parcels, the jury was entitled to hear evidence about FirstBank’s actions to escrow the rent payments.” /d.
'3 Rule 32 of the Virgin Islands Rules of Appellate Procedure provides
(a) Issuance of Mandate. The mandate of the Supreme Court shall issue 21 days after the
entry of judgment unless the time is shortened or enlarged by order. A certified copy of the
judgment and a copy of the opinion of the Supreme Court, if any, and any direction on costs
shall constitute the mandate, unless the Court directs that a formal mandate issue. The
timely filing of a petition for rehearing will stay the mandate until disposition of the petition
unless otherwise ordered by the Supreme Court. If the petition is denied, the mandate shall
issue ten days after entry of the order denying the petition unless otherwise ordered. The
filing of a notice of appeal or application for a writ of certiorari to the United States Court
of Appeals for the Third Circuit will not stay the mandate
V.I. R. App. P. 32(a)
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Mootness Doctrine in the Virgin Islands
447 This Court has recognized that “a matter typically becomes moot when a decision rendered
by a court ‘would have no practical impact on the particular litigants in th{e] case.’” Keating-Smith
v. Mustafa, 78 V.1. 866, 880-81 (V.I. 2024) (citing V.. Conservation Soc'y, Inc. v. Golden Resorts
LLLP, §S. Ct. Civ. No. 2009-0026, 2010 V.I. Supreme LEXIS 21, at *11 (June 23, 2010)
(unpublished)). The mootness doctrine, in turn, is “[t]he principle that American courts will not
decide moot cases.” Black's Law Dictionary 1205 (12th ed. 2024). The United States Supreme
Court has long recognized this principle, explaining that when an event occurring after an appeal
makes it impossible for the Court to grant the appellant any effectual relief, the Court will dismiss
the appeal rather than proceed to a formal judgment. ///. Cent. R.R. Co. v. Adams, 180 U.S. 28, 32
(1901) (discussing Mills v. Green, 159 U.S. 651 (1895)); see Heitmuller v. Stokes, 256 U.S. 359
362 (1921) (concluding that a case became moot when, after the proceedings below, the prevailing
party conveyed title to the premises and thereby “practically ended the controversy”). “[I]n other
words, that the court will not decide moot cases.” ///, C. R. Co., 180 U.S. at 32
948 However, in the Virgin Islands—unlike in the federal courts, where mootness directly
implicates subject matter jurisdiction—"the mootness doctrine is a non-jurisdictional claims
processing rule that has been incorporated into Virgin Islands law only as a matter of judicial
policy.” Keating-Smith, 78 V.1. at 878 (quoting Haynes v. Ottley, 61 V.1. 547, 558 (V.I. 2014))
Ordinarily, “many claims-processing rules are waived if not asserted by a party because they serve
to protect the interests of that particular party, and thus should not be invoked by courts sua sponte.”
/d. (quoting Simon v. Joseph, 59 V.I. 611, 629 (V.I. 2013)). A court may nevertheless sua sponte
raise a claims-processing rule when it "implicate[s] judicial interests beyond those of the parties."
Id. (quoting Simon, 59 V.I. at 629). Such judicial interests may arise, for example, where application FirstBank v. Harthman 2026 VI 22
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of the claims-processing rule prevents potentially inconsistent adjudications of the same issue in
different courts or protects the rights of nonparties. /d. (citing Simon, 59 V.1. at 630; Sam’s Food
Distributors, Inc. v. NNA & O, LLC, 73 V.I. 453, 461 n.2 (V.I. 2020))
449 Whether such judicial interests are implicated here must be considered in light of the nature
and purposes of the underlying FED proceeding. The Virgin Islands forcible entry and detainer
statutory scheme, 28 V.I.C. §§ 781-795, provides a streamlined, summary procedure for
determining the immediate right to possession of property, with the issues narrowly confined so
that collateral claims do not delay that determination. See Keating-Smith, 78 V.I. at 880 (“[T]he
FED statute not only seeks to vindicate the private interests of a landlord to obtain redress in a
specific case, but also furthers the societal interests of promoting the free use of land as well as
ensuring that the judicial system provides a speedy and relatively inexpensive legal mechanism to
resolve landlord-tenant disputes so that the parties need not resort to violence or self-help.”)
450 Consistent with the limited scope of an FED action, Harthman's 2015 FED Action sought
only restitution of Parcel 17B, Parcel 17C, and Parcel 17D based on FirstBank's alleged
nonpayment of rent under the 2003 Lease. Accordingly, the dispositive question in this appeal is
whether the Superior Court erred in affirming the Magistrate Division’s FED Judgment granting
Harthman restitution of those parcels. That question, however, was conclusively resolved by the
Superior Court’s judgment in the 2012 Civil Action awarding Harthman possession of those same
parcels, which this Court left undisturbed on appeal before denying FirstBank’s petition for
rehearing
4951 Consequently, any determination in this appeal concerning Harthman’s entitlement to
restitution of Parcel 17B, Parcel 17C, and Parcel 17D—including a decision affirming or reversing
the Superior Court’s March 12, 2024 Order affirming the Magistrate Division’s FED Judgment
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would have no practical effect on the parties’ possessory rights. Because the judgment entered in
the 2012 Civil Action conclusively resolved Harthman’s entitlement to possession of those parcels
this Court can no longer grant FirstBank any effectual relief concerning their possession. This
appeal is therefore moot
452 These circumstances implicate judicial interests beyond those of the parties and warrant sua
sponte application of the mootness doctrine. Deciding the merits of this moot appeal would
needlessly expend judicial resources on a controversy that can no longer affect the parties’
possessory rights and risk producing determinations inconsistent with the judgment awarding
possession in the 2012 Civil Action. It would also undermine the finality of that judgment and
frustrate the purpose of the FED statutory scheme by prolonging litigation over possessory rights
that have already been conclusively resolved
453 For these reasons, we conclude that, in the specific context presented here—an FED appeal
in which the parties’ possessory rights to the same property have been conclusively adjudicated in
a separate action by a judgment that became final during the appeal—the mootness doctrine
constitutes a mandatory, nonwaivable claims-processing rule that this Court must invoke unless an
exception applies. Cf Keating-Smith, 78 V.I. at 882 (concluding that judicial interests beyond those
of the parties were implicated and, therefore, that mootness, “in the specific context of an FED
appeal where the respondent has returned possession of the premises to the petitioner, constitutes a
mandatory non-waivable claims-processing rule that this Court and the Superior Court must invoke
unless some exception to the mootness doctrine applies”). Because no exception applies here, we FirstBank v. Harthman 2026 VI 22
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sua sponte invoke the mootness doctrine and dismiss as moot FirstBank’s appeal from the Superior
Court’s March 12, 2024 Order affirming the Magistrate Division’s FED Judgment.!*
III. CONCLUSION
954 Based on the foregoing, this Court must invoke the mootness doctrine and will not review
this case on its merits. Accordingly, we dismiss as moot FirstBank’s appeal from the Superior
Court’s March 12, 2024 Order affirming the Magistrate Division’s FED Judgment granting
restitution of Parcel 17B, Parcel 17C, and Parcel 17D to Harthman
Dated this 29" day of September, 2026
BY THE COURT
HAROLD W.L. WILLOCKS
Associate Justice
ATTEST
DALILA E. PATTON, ESQ
Clerk of the Court
By: WX. es
Deputy oy
Dated G 4 Oe Og C
'4 We emphasize that our holding is limited to the specific procedural circumstances presented here As we recognized in Keating-Smith, “the same claims-processing rule could be waivable in one context but not waivable in another.” 78 V.I. at 878 (comparing Tip Top Constr. Corp. v. Gov't of the VI, 60 V.I. 724, 730 n.2 (V.I. 2014) (characterizing ripeness as a claims-processing rule, the application of which was waived due to not being timely asserted) with Simon, 59 V.1. at 629 (sua sponte invoking ripeness as a basis for dismissal, despite ripeness ordinarily being a waivable claims-processing rule, because considering an unripe appeal would affect judicial interests beyond those of the parties by disrupting comity between courts))
Accordingly, our holding should not be construed as imposing a blanket requirement that a court sua sponte invoke the mootness doctrine merely because there are related proceedings between the same parties concerning possession of the same property. Whether sia sponte invocation is required depends on the particular circumstances and the judicial interests implicated. We likewise do not decide whether the Superior Court was required to sua sponte raise mootness when reviewing
FirstBank’s appeal from the Magistrate Division’s FED Judgment. We hold only that this Court must invoke the doctrine under the circumstances now presented, in which the parties’ possessory rights have been conclusively adjudicated in the 2012 Civil Action and that adjudication is final