In a recent case, the Appellant, Hani Khalil, asked the Supreme Court of the U.S. Virgin Islands to hear his argument concerning the Superior Court’s orders, which ruled on his motion in opposition to a motion for attorney’s fees and prejudgment interest filed by the Appellee, Guardian Insurance Company

Guardian sued Khalil in October 2008 for breach of contract, indemnity, and for a declaratory judgment.  The insurance company sought to recover the funds it paid Khalil to settle a claim on an auto accident involving his vehicle, which Guardian insured.  Khalil filed an answer and brought counterclaims against Guardian for various causes of action, which included breach of contract.  Eventually, both parties filed motions for summary judgment.  The Superior Court, in its July 30, 2012 order, granted in part and denied in part Guardian’s motion for summary judgment and denied Khalil’s summary judgment motion.  This had the effect of: (1) dismissing Guardian’s breach of contract claim; (2) entering judgment against Khalil on Guardian’s indemnity and declaratory judgment claims; and (3) dismissing all of Khalil’s counterclaims against Guardian.  On the same day, the Superior Court entered judgment against Khalil for $33,000.


Khalil filed a notice of appeal but failed to file a brief or any other documents.  Guardian filed a motion to dismiss the appeal, which was granted.  Khalil filed a petition for writ of certiorari with the United States Court of Appeals for the Third Circuit, which was denied.
While the first appeal remained pending, Guardian filed motions for attorney’s fees and for prejudgment interest with the Superior Court.  Khalil filed a “Motion in Opposition” to the attorney’s fees motion but not the motion for prejudgment interest.  The Superior Court granted the attorney’s fees motion, and ordered Khalil to pay an additional $15,830 to Guardian.  Nearly three months later, Khalil filed a notice of appeal of the order.  Guardian moved to dismiss Khalil’s second appeal as untimely, and the Supreme Court granted the motion.  Khalil did not file a petition for writ of certiorari in response to this order.
The Superior Court issued two orders on April 3, 2013.  First, the Superior Court recognized, sua sponte, that it inadvertently didn’t consider Khalil’s “Motion in Opposition” when it rendered its earlier order—which constituted reversible error.  After considering the arguments in Khalil’s opposition, the Superior Court reduced the attorney’s fee award.  In the second order, it granted Guardian’s unopposed motion for prejudgment interest.
Khalil filed a notice of appeal, which only identified the April 3, 2013 orders as those being appealed.  He timely filed a brief but devoted all of it, however, to challenging the earlier grant of summary judgment that was the subject of his first appeal and not a part of the appeal at hand.  Guardian argued that the scope of this appeal should be limited to only the issues that were adjudicated in the April 3, 2013 Superior Court Orders and not from July 30, 2012.  Failing to timely and correctly challenge any aspect of the earlier orders, Khalil waived appellate review of them, the company said.  Khalil contended that the April 3, 2013 Orders “served to reaffirm the original grant[] of summary judgment,” and that “the logic and reasoning of that earlier Memorandum Opinion still resonates.”  Khalil also argued that the Supreme Court should review the July 30, 2012 Opinion because the earlier decision didn’t affirm the opinion—it just dismissed his appeal for failure to prosecute.
The Supreme Court held that the filing of motions for attorney’s fees and prejudgment interest didn’t toll the time to appeal an otherwise final judgment.  To obtain appellate review of the Superior Court’s July 30, 2013 opinion, Khalil was required to file a notice of appeal within thirty days of that decision and to timely prosecute that appeal.  Because he didn’t move forward with his first appeal, Khalil waived his right to have the Supreme Court directly review that decision.  Allowing him to use the April 3, 2013 Orders as a mechanism to, in effect, disregard the earlier dismissal would be contrary to long-established appellate practices, the Court said.
Khalil was precluded from challenging the July 30, 2012 Opinion as part of this appeal, and since he failed to brief the only issues that he could potentially raise, the Superior Court’s decisions were affirmed.