James S. Carroll III, Judge of the Superior Court of the Virgin Islands was asked to settle a real estate dispute that originated in 2002. The Defendant Basil Bryan agreed to sell Parcel No. 17–5C, Estate St. Peter on St. Thomas, U.S. Virgin Islands, to the Plaintiff, Nancy Anderson. The parties also agreed that Ms. Anderson would receive an easement and Mr. Bryan would pave the roadway on the easement within 90 days of closing.
Mr. Bryanl didn’t pave the roadway, and Ms. Anderson instituted an action against him in November 2008. claiming a breach of contract, nuisance, and requesting an injunction. Prior to trial, the court dismissed the breach of contract action on statute of limitations grounds. The case went before the court in May 2011, and it returned a verdict for Nancy on all counts.
At the close of the Ms. Anderson’s case,Mr. Bryan moved for a directed verdict, but the court reserved ruling at that time. The judge later denied mr. Bryan’s motion and reaffirmed a prior ruling that the continuing torts doctrine (or continuing violations doctrine) tolled the statute of limitations on the nuisance claim. However, the Supreme Court of the Virgin Islands decided Anthony v. Firstbank Virgin Islands (VI S.Ct. Civ January 17, 2013), which discussed the “continuing violations” doctrine.
Judge Carroll said that the Virgin Islands Supreme Court’s explanation of the continuing violations doctrine applied to this case and goes against its previous ruling on the claim for nuisance. As a result, the judge reconsidered his ruling and found that the continuing violations doctrine did not apply to this case: the statute of limitations for the nuisance claim was not tolled, and the judge agreed with Mr. Bryan’s argument that the nuisance action was barred by the statute of limitations.
In this case, a final judgment had not yet been entered. Mr. Bryan’s pretrial motions and Ms. Anderson ‘s request for attorney’s fees were still before the Court. Judge Carroll held that it is well within the court’s power to reexamine its decision on the issue of the statute of limitations for the nuisance claim.
Mr Bryan consistently raised the statute of limitations as an affirmative defense to Ms. Anderson’s contract and tort claims. Judge Carroll found that Mr Bryan contracted to pave the easement on or before August 7, 2002. Ms. Anderson’s complaint was filed on November 10, 2008; nonetheless, the judge allowed the matter to move forward on a nuisance tort claim (despite being subject to a two-year statute of limitations) as he found that Mr. Bryan’s continued refusal to pave the road gave rise to a sufficiently reoccurring, continued nuisance that tolled the limitations period.
The Supreme Court of the Virgin Islands recently addressed the law of the continuing violations doctrine in Anthony. In Anthony, the plaintiff purchased a condominium unit purportedly based on the condo association’s representation that it carried insurance. Around the same time as the purchase, Hurricane Marilyn struck St. Thomas and essentially destroyed the condominium. The insurance provider was unable to pay to repair the building and the condo association did nothing. Anthony argued that the statute of limitations on the initial wrong, the condo association’s representation that it was insured, was tolled by the ongoing damaged state of the property. However, he failed to allege some course of conduct that was actionable. His claim was based entirely on the single act of the insurance representation. The Supreme Court clarified that an application of the continuing violations doctrine required that "some unlawful act occur within the limitations period, and held that the ill effects of the original unlawful act do not qualify for the purpose of tolling the limitations period."
Similarly, Ms. Anderson alleged a single unlawful act: the failure to pave the easement. Therefore, the continuing unlawful act that occurred during the limitations period was simply the continued failure to pave the easement. She argued that by not doing the paving, Mr. Bryan was engaged in a repeated interference with her use and enjoyment of the land. However, the Supreme Court’s opinion is clear that a plaintiff must show that there is a continuing wrongful act and not simply continuing ill effects from an initial wrongful act.
If the court were to adopt the plaintiff’s view of the continuing tort doctrine, the judge said it would be difficult to see how any nuisance claim could be time barred. In this case, there is only the initial wrongful act. Mr. Bryan’s continued refusal to pave the easement was not action, but inaction. Although this inaction interfered with Ms. Anderson’s use and enjoyment of the land, this interference was the continued ill effect of the initial refusal to pave the easement. Although this ill effect continued outside the limitations period, the judge said that a continued unlawful act beyond the harm caused by the initial unlawful act was required, which didn’t happen in the instance at bar.
Because the continuing violation doctrine did not apply, the statute of limitations was never tolled and Ms. Anderson’s nuisance claims were time-barred. Judge Carroll granted Mr. Bryans post–trial motions in part, dismissed the nuisance claim, and vacated the portion of the jury verdict awarding $75,000.00 in damages for the nuisance.
Anderson v. Bryan, 2013 WL 3215672 (V.I.Super. June 24, 2013)