Banks analysis in Virgin Islands

2023In other words, a Banks analysis “involves more than simply the rote counting of judicial decisions,” id. at ¶ 29, but rather comprehends a “holistic” consideration of the aim served by each factor.9 ¶ 15 With respect to the first factor—the adoption of a particular rule by other Virgin Islands courts—we seek “to determine the extent, if any, that the legal community and the public have grown to rely upon and potentially shape their conduct by a given rule.” Robertson, 2023 VI at ¶ 30 (citing Banks, 55 V.I. at 985 & n.10).

2023In one case, the court performed a Banks analysis, see Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 984 (V.I. 2011), and concluded that: A defendant will be liable to a plaintiff for trespass if the defendant: (1) intentionally enters onto the plaintiff’s property without the plaintiff’s permission; (2) remains on plaintiff’s property without plaintiffs permission; (3) places something on the plaintiff’s property without the plaintiff’s permission; or (4) removes something from the plaintiff’s property without the plaintiff’s permission.

2023Therefore, having recognized that Virgin Islands courts had not spoken with one voice with respect to the elements of a trespass action, the Superior Court possessed an obligation to determine those elements, even if only for purposes of adjudicating the preliminary injunction motion.8 Nevertheless, while the failure to conduct a Banks analysis or adopt an earlier opinion’s Banks analysis by reference would ordinarily constitute reversible error, see Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014), in the interest of judicial economy we exercise our discretion to overlook the Superio

2023Therefore, having recognized that Virgin Islands courts had not spoken with one voice with respect to the elements of a trespass action, the Superior Court possessed an obligation to determine those elements, even if only for purposes of adjudicating the preliminary injunction motion.8 Nevertheless, while the failure to conduct a Banks analysis or adopt an earlier opinion’s Banks analysis by reference would ordinarily constitute reversible error, see Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014), in the interest of judicial economy we exercise our discretion to overlook the Superio

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2015To perform a Banks analysis, the Court first “examines] which common law rule Virgin Islands courts have applied in the past; next identifies] the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determines] which common law rule is soundest for the Virgin Islands.” Id.

2015To perform a Banks analysis, the Court first “examines] which common law rule Virgin Islands courts have applied in the past; next identifies] the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determines] which common law rule is soundest for the Virgin Islands.” Id.

2025Wilkinson v. Wilkinson, 70 V.I. 901 , 907 (V.I. 2019) (observing that “[w]hen addressing issues of Virgin Islands common law that this Court has yet to address using the Banks framework, the Superior Court must engage in the three-factor analysis outlined in Banks,” and that “the Superior Court err[s] in relying on [case law] without conducting a Banks analysis”) (citing King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) and Better Bldg.

2025Wilkinson v. Wilkinson, 70 V.I. 901 , 907 (V.I. 2019) (observing that “[w]hen addressing issues of Virgin Islands common law that this Court has yet to address using the Banks framework, the Superior Court must engage in the three-factor analysis outlined in Banks,” and that “the Superior Court err[s] in relying on [case law] without conducting a Banks analysis”) (citing King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) and Better Bldg.

2025Machado, 61 V.I. at 379 (noting that a Banks analysis is not necessary because the definition of consideration is widely accepted).

2025Machado, 61 V.I. at 379 (noting that a Banks analysis is not necessary because the definition of consideration is widely accepted).

2016The majority of jurisdictions still consider pension or retirement benefits earned during the marriage to be marital property subject to division by the court in a divorce action. 11 In addition, there are a number of states that explicitly define retirement or pension benefits as marital property via statute. 12 While case law from jurisdictions that rely on statutes to define pensions or retirement benefits as marital property is not applicable in a Banks analysis, see Malloy, 61 V.I. 163 , cases decided prior to the enactment of a statute defining pension or retirement benefits as marital p

2016The majority of jurisdictions still consider pension or retirement benefits earned during the marriage to be marital property subject to division by the court in a divorce action. 11 In addition, there are a number of states that explicitly define retirement or pension benefits as marital property via statute. 12 While case law from jurisdictions that rely on statutes to define pensions or retirement benefits as marital property is not applicable in a Banks analysis, see Malloy, 61 V.I. 163 , cases decided prior to the enactment of a statute defining pension or retirement benefits as marital p

2023See, e.g., Donastorg v. Daily News Publ'g Co., Inc., 63 V.I. 196, 329-30 (Super. Ct. 2015); Blue Water Constr., Inc. v. Hill, 76 V.I. 15 , 39 (Super. Ct. 2022); Island Airlines, LLC v. Bohlke, 76 V.I. 47 , 66 (Super. Ct. 2022).

2023See, e.g., Donastorg v. Daily News Publ'g Co., Inc., 63 V.I. 196, 329-30 (Super. Ct. 2015); Blue Water Constr., Inc. v. Hill, 76 V.I. 15 , 39 (Super. Ct. 2022); Island Airlines, LLC v. Bohlke, 76 V.I. 47 , 66 (Super. Ct. 2022).

2023Accord, Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (collecting cases). ¶ 14 To ascertain the elements of trespass, we must—as with every other common law rule— consider and weigh the three Banks factors: “(1) whether any Virgin Islands courts have previously 8 We acknowledge that performing a Banks analysis—or considering any issue of firs

2023Accord, Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (collecting cases). ¶ 14 To ascertain the elements of trespass, we must—as with every other common law rule— consider and weigh the three Banks factors: “(1) whether any Virgin Islands courts have previously 8 We acknowledge that performing a Banks analysis—or considering any issue of firs

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023The court then pointed out that a Banks analysis was necessary, see id. at 426-27 , but in a footnote—the footnote the PIMCO Defendants cite—the court criticized the parties for failing to conduct a Banks analysis.

2023The court then pointed out that a Banks analysis was necessary, see id. at 426-27 , but in a footnote—the footnote the PIMCO Defendants cite—the court criticized the parties for failing to conduct a Banks analysis.

2023Nevertheless, this Court, exercising its discretion in the interest of judicial economy, has overlooked that error and, after conducting the required Banks analysis, reaffirms that the approach first announced in Hodge v. McGowan, 50 V.I. 296, 306 (V.I. 2008), adopting the factors identified in the Restatement (Second) of Torts § 158 (1965), is the soundest rule for the Virgin Islands.

2014See, e.g., Matthew, 56 V.I. at 681-84 (performing such an analysis on appeal when Superior Court opinion pre-dated Banks); accord Browne v. Gore, 57 V.I. 445 , 453 n.5 (V.I. 2012) (the Supreme Court “could, in the interests of judicial economy, exercise [its] discretion to address [an] issue as part of [an] appeal, as [has been] done in other cases in which [the] Court applies the same legal standard as a Superior Court judge”) (citing United Corp. v. Tutu Park Ltd., 55 V.I. 702 , 708 n.3 (V.I. 2011), Martin v. Martin, 54 V.I. 379, 385 (V.I. 2010), and Hodge v. McGowan, 50 V.I. 296, 310-11 (V.

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023Mgmt., Inc., et al., Case No. SX-2018-CV-0014 2023 VI Super 75 Memorandum Opinion by a party to be estopped.”); see Sarauw v. Fawkes, 66 V.I. 253, 260-65 (2017) (conducting a Banks analysis on judicial estoppel); see also 3RC & Co. v. Boynes Trucking Sys., 63 V.I. 544, 551-52 (2015) (conducting a Banks analysis to determine the proper injunction standard).

2023The first Virgin Islands case to address civil conspiracy was Cooper v. Vitraco, Inc., 8 V.I. 112, 120 (D.V.I. 1970), in which the District Court denied a motion to dismiss, explaining that “[c]ivil conspiracy consists of an agreement or combination to perform a wrongful act that results in damage to the plaintiff.” The court relied partly on the Restatement (First) of Torts.

2023The first Virgin Islands case to address civil conspiracy was Cooper v. Vitraco, Inc., 8 V.I. 112, 120 (D.V.I. 1970), in which the District Court denied a motion to dismiss, explaining that “[c]ivil conspiracy consists of an agreement or combination to perform a wrongful act that results in damage to the plaintiff.” The court relied partly on the Restatement (First) of Torts.

2016The Court need not conduct the three factor analysis required by Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) because the issue presented here involves the interpretation of a Virgin Islands statute. “[W]hen dealing with the interpretation of a Virgin Islands statute, courts must utilize the canons of statutory construction defined by this Court and the Virgin Islands Code in order to determine the intent of the Legislature — which must control over any common-law authority that would be the focus of a Banks analysis.” In re L.O.F., 62 V.I. 655 , 661 n.6 (V.I. 2015) (citing B

2016The Court need not conduct the three factor analysis required by Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) because the issue presented here involves the interpretation of a Virgin Islands statute. “[W]hen dealing with the interpretation of a Virgin Islands statute, courts must utilize the canons of statutory construction defined by this Court and the Virgin Islands Code in order to determine the intent of the Legislature — which must control over any common-law authority that would be the focus of a Banks analysis.” In re L.O.F., 62 V.I. 655 , 661 n.6 (V.I. 2015) (citing B

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2024Inniss v. Inniss, 65 V.I. 270 , 280 n.7 (V.I. 2016). ¶ 21 In conducting a Banks analysis, a court must “consider three non-dispositive factors: (1) Mosler et al. v. Gerace et al. 2024 VI 1 whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.” Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Matthew v. Herman, 56 V.I. 674, 680-81 (V.I. 2012)).

2017It concluded that the best rule for the Virgin Islands was to continue following the Territorial Court’s decision in Fuentes v. Fuentes. 38 V.I. 29, 40 (V.I.

2017It concluded that the best rule for the Virgin Islands was to continue following the Territorial Court’s decision in Fuentes v. Fuentes. 38 V.I. 29, 40 (V.I.

2015See King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) (explaining that, “because [the Supreme Court] has yet to determine the elements of an express trust at common law under the appropriate analysis, the Superior Court erred in applying a common law rule without examining the Banks factors”). 58 V.I. 431 (V.I. 2013).

2015See King v. Appleton, 61 V.I. 339, 349 (V.I. 2014) (explaining that, “because [the Supreme Court] has yet to determine the elements of an express trust at common law under the appropriate analysis, the Superior Court erred in applying a common law rule without examining the Banks factors”). 58 V.I. 431 (V.I. 2013).

2014See, e.g., Perez v. Ritz-Carlton (V.I.), Inc., 59 V.I. 522 , 529 n.5 (V.I. 2013) (noting thatpre-Banfa decision adopting Restatement (Second) OF Torts § 343 had relied on 1 V.I.C. § 4 and may require reconsideration in a future case); Joseph v. Daily News Publishing Co., 57 V.I. 566 , 585 n. 10 (V.I. 2012) (considering Banks factors with respect to whether to continue to follow pre-Banks decision that had adopted Restatement (Second) of Torts § 558 based solely on 1 V.I.C. § 4).

2014See, e.g., Perez v. Ritz-Carlton (V.I.), Inc., 59 V.I. 522 , 529 n.5 (V.I. 2013) (noting thatpre-Banfa decision adopting Restatement (Second) OF Torts § 343 had relied on 1 V.I.C. § 4 and may require reconsideration in a future case); Joseph v. Daily News Publishing Co., 57 V.I. 566 , 585 n. 10 (V.I. 2012) (considering Banks factors with respect to whether to continue to follow pre-Banks decision that had adopted Restatement (Second) of Torts § 558 based solely on 1 V.I.C. § 4).

2026See State Farm Fire, 978 P.2d at 771 424 Accordingly, it follows axiomatically and consistent with the above Banks analysis that the negligence claim here retains its grounding in tort.

2026See State Farm Fire, 978 P.2d at 771 424 Accordingly, it follows axiomatically and consistent with the above Banks analysis that the negligence claim here retains its grounding in tort.

2026Comm’n of the U.S.V.I., 56 V.I. 391, n. 8 (V.I. 2012) (deeming a one- sentence argument as waived); Constr.

2025See Wyso v. Full Moon Tide, LLC, 78 A.3d 747 (R.I. 2013). ¶ 17 We disagree.

2025See Wyso v. Full Moon Tide, LLC, 78 A.3d 747 (R.I. 2013). ¶ 17 We disagree.

2025John Owners’ Ass'n, 71 V.1. 1119, 1127 (V.1 2019) (citing Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 713 (V.I. 2010)).

2025John Owners’ Ass'n, 71 V.1. 1119, 1127 (V.1 2019) (citing Beachside Assocs., LLC v. Fishman, 53 V.I. 700, 713 (V.I. 2010)).