In the Supreme Court of the United States Virgin Islands

In the Supreme Court of the

United States Virgin Islands

------♦------ Supreme Court Civil Appeal No. 2019-0066

Consolidated Cases: S. Ct. Civ. Nos. 2019-0065, 2019-0066; 2019-0073

SUGAR BAY CLUB and RESORT CORP., d/b/a

SUGAR BAY RESORT and SPA,

Appellant/Defendant, v.

CAROLYN ESPERSEN,

Appellee/Plaintiff

On Appeal from the Superior Court of the Virgin Islands

Division of St. Thomas and St. John Super. Ct. Civ. No. 355/2014 (STT)

Honorable Michael C. Dunston

BRIEF OF APPELLANT

SUGAR BAY CLUB and RESORT CORP.

SEMAJ I. JOHNSON, ESQ. KEVIN A. RAMES ESQ. LAW OFFICES OF K. A. RAMES, P.C. 2111 COMPANY STREET, SUITE 3 CHRISTIANSTED, ST. CROIX U.S. VIRGIN ISLANDS 00820 TELEPHONE: (340) 773-7284 FACSIMILE: (340) 773-7282

Attorneys for Defendant-Appellant

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TABLE OF CONTENTS

TABLE OF AUTHORITIES iv

STATEMENT OF THE CASE 1

SUBJECT MATTER AND APPELLATE JURISDICTION 3

STATEMENT OF ISSUES PRESENTED FOR REVIEW AND

STANDARDS OF REVIEW

4

1. Whether the Superior Court erred in denying Sugar Bay’s Rule 50 motion despite Espersen’s failure to produce any evidence that Sugar Bay published any defamatory statements about her?

4

2. Whether the Superior Court erred in denying Sugar Bay’s Motion for Leave to Amend its Affirmative Defenses to raise conditional privilege, and holding that Sugar Bay waived its conditional privilege affirmative defense, when this is a substantive element of common law defamation?

5

3. Whether the Superior Court erred as a matter of law by denying Sugar Bay’s Rule 50, 59 and 60 Motions concerning punitive damages on defamation?

5

4. Whether the Superior Court erred as a matter of law in determining that Espersen was an “employee” within the meaning of Title 24 V.I.C. § 62?

6

5. In the alternative, whether the Superior Court erred as a matter of law by not limiting Espersen’s noneconomic damages for her wrongful discharge claim to her period of unemployment, and by denying Sugar Bay’s Rule 59 and 60 Motions based upon excessiveness of the verdict?

6

6. Whether the Superior Court erred as a matter of law by denying Sugar Bay’s Rule 50 Motion concerning punitive damages on the wrongful discharge claim and 59 and 60 Motions denying

7

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ii

Sugar Bay’s motion for a new trial or for relief from judgment based upon the excessiveness of the verdict?

7. Whether the Court erred as a matter of law by improperly

admitting Sugar Bay’s purported web page into evidence without authentication and by allowing the CD of the Virgin Islands Department of Labor hearing to be admitted into evidence?

8

STATEMENT OF OTHER PROCEEDINGS 9

STATEMENT OF THE FACTS 9

ARGUMENT 10

I. Defamation 10

A. There was No Evidence of an Unprivileged Publication of Defamatory Statements to Third Parties

10

B. Even if There was Evidence of Publication, the Superior Court Erred in Determining that Privilege and Truth Were Affirmative Defenses That Had Been Waived By Sugar Bay

21

C. The Superior Court Erred By Denying Sugar Bay’s Motion for New Trial Based Upon the Excessiveness of the Defamation Verdict

23

D. At a Minimum, the Punitive Damages Portion of the Defamation Award Must Be Vacated

24

1. As a Matter of Law, Punitive Damages Requires an Exceptionally High Burden of Proof

2. The Only Support for Punitive Damages Was the Inflammatory Statements of Counsel

24 27

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iii

3. The Excessive Punitive Damages Award is Unconstitutional and Violated Sugar Bay’s Due Process Rights

29

II. Wrongful Discharge 30 A. Because Espersen Was Not an “Employee” Within

the Meaning of 24 V.I.C. § 62, the Wrongful Discharge Verdict Must Be Vacated

B. Alternatively, the Superior Court Erred by Determining that Espersen Could Recover Damages for the Period After She Obtained Substantially Equivalent Employment, and by Denying Sugar Bay’s Motion for New Trial Based Upon the Excessiveness of the Wrongful Discharge Verdict

C. At a Minimum, the Punitive Damages Portion of

the Wrongful Discharge Award Must be Vacated

30 35 37

III. Evidentiary Rulings 40

A. The Court Improperly Admitted a Portion of Sugar

Bay’s Webpage

40

B. The Court Improperly Admitted the Department of

Labor CD

41

Conclusion

44

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iv

TABLE OF AUTHORITIES Cases Page Adams v. North West Co. (Int'l), Inc., 63 V.I. 427 (V.I. Super. Ct. 2015)

24, 26

Arvidson v. Buchar, 2017 WL 3670198, at *2, (V.I. Super. Ct. Feb. 2, 2017)

10

Bertrand v. Cordiner Enterprises, Inc., No. CV ST-08-CV-457, 2013 WL 6122388, at *9 (V.I. Super. Nov. 15, 2013)

38

Bertrand v. Mystic Granite & Marble, Inc., 63 V.I. 772 (V.I. 2015)

24

Blakley v. Continental Airlines, Inc., 992 F. Supp. 731 (D.N.J. 1998)

37

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996) 29 Booker v. Taylor Milk Co., 64 F.3d 860 (3d Cir. 1995) 31 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989)

29

Chapman v. Cornwall, S. Ct. Civ. No 2012-0032, 2013 WL 2145092, at *6 (V.I. May 15, 2013)

21

Charles v. Payne, S. Ct. Civ. No. 2018-0012, 2019 WL 2487750, at *2 (V.I. June 12, 2019)

6

Cornelius v. Bank of Nova Scotia, S. Ct. Civ. No 2015-0058, 2017 WL 3412202, at *9 (V.I. Aug. 8, 2017)

25

Creative Minds, LLC v. Reef Broadcasting, Case No. ST-11-CV-131, 2014 WL 4908588 at *11 (V.I. Super. Ct. Sept. 24, 2014)

39

Defoe v. Phillip, 56 V.I. 109 (V.I. 2012) 34 Dodd v. United States, 545 U.S. 353 (2005) 34 Espersen v. Sugar Bay Club & Resort Corp., Civil No. ST-14-CV-355, 2018 WL 6177341, at *2 (V.I. Super. Ct. Civ. Nov. 21, 2018)

10, 17, 21, 22, 32

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) 40

Galloway v. People, 57 V.I. 693 (V.I. 2012) 30 Government of the Virgin Islands v. Servicemaster Co., LLC, No. 34

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v

SX-16-CV-700, 2019 VI LEXIS 122, at *48 (V.I. Super. Ct. Nov. 27, 2019) Guardian Ins. Co. v. Joseph, No. CIV. 93-151, 1994 WL 714190, at *4 (D.V.I. Oct. 25, 1994)

26

Gould v. Salem, No. S.CT.CIV. 2010-0098, 2013 WL 5348463, at *3 (V.I. Sept. 25, 2013).

9

Harvey v. Christopher, 55 V.I. 565 (V.I. 2011) 5 Henry v. Hess Oil Virgin Islands Corp., 33 V.I. 163 (D.V.I. 1995)

28

Hills v. Gautreaux, 425 U.S. 284 (1976) 29 Hodge v. Bluebeard's Castle, Inc., No. Civ. 92511997, 2002 WL 1906546 at *1. (V.I. Terr. Ct. July 18, 2002), vacated, 2009 WL 891896 (D.V.I. Apr. 1, 2009)

28

Hodge v. McGowan, No. CIV. 2007-057, 2008 WL 4924628, at *5 (V.I. Nov. 10, 2008).

8

In re Baby E.C. Through Shearer, 69 V.I. 826, 338 (V.I. 2018)

30

Joseph v. Daily News Publ'g Co., Inc., 57 V.I. 566 (V.I. 2012) 20 Kendall v. Daily News Pub. Co., S.Ct. Civ. No. 2010-0046, 2011 WL 4434922, at *4 (V.I. Sept. 21, 2011)

17

Le Marc's Mgmt. Corp. v. Valentin, 709 A.2d 1222 (1998) 25 Lemington Home for the Aged, 777 F.3d. 620 (3d Cir. 2015) 26

N. Carolina St. Bd. of Ed. v. Swann, 402 U.S. 43 (1971) 29 Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617 (2018) 32 O'Connor v. Newport Hosp., 111 A.3d 317 (R.I. 2015) 41 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991) 29

Prince v. People, 57 V.I. 399 (V.I. 2012) 4 People v. Noel, 68 V.I. 196, 210 (Super. Ct. 2017) 34 Sayih v. Perlmutter, 561 So.2d 309, 312 (Fla. App. 1990) 43 St. Croix Renaissance Group, LLP v. St. Croix Alumina, LLC, Civ. No. 04–67, 2011 WL 2160910, at *11 (D.V.I. May 31, 2011)

25

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State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 419-20 (2003) Stiles v. Yob, No. 2016-0036, 2016 WL 3884506, at *3 (V.I. July 13, 2016)

29, 30 5

Jones v. United Parcel Service, Inc., 674 F.3d 1187 (10th Cir. 2012)

40

Thomas Hyll Funeral Home, Inc. v. Bradford, 233 F. Supp. 2d 704 (D.V.I. 2002)

24, 25

Tip Top Constr. Corp. v. Austin, No. S.CT.CIV. 2017-0045, 2019 WL 2464620, at *2 (V.I. June 11, 2019)

6, 7, 8

United States v. Adams, 385 F.2d 548 (2d Cir. 1967)

43

Virgin Island Mar. Serv., Inc. v. Puerto Rico Mar. Shipping Auth., 37 V.I. 193 (D.V.I. 1997)

28

Statutes

48 U.S.C. § 1561 29 4 V.I.C. § 32(a) 3 4 V.I.C. § 76 3 24 V.I.C. § 62 6, 30,

32, 33 24 V.I.C. §77 32 24 V.I.C. § 79 29 30, 32

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STATEMENT OF THE CASE

This defamation and wrongful discharge case resulted in an unprecedently

high jury verdict of approximately Two Million Eight Hundred Thousand Dollars

($2,800,000.00), for Carolyn Espersen (“Plaintiff” or “Espersen”) and against

Sugar Bay Club and Resort Corp. (“Sugar Bay”), Atlantic Human Resources

(“AHRA”) and Aimbridge Hospitality, L.P. (“Aimbridge”). On appeal, this action

raises three core questions. First, was there any evidence at all that anyone

authorized to speak for Sugar Bay published defamatory statements about Espersen

to any third party? Second, was Espersen an “employee” under Title 24, Section

62 of the V.I. Code when she filed the Complaint? And third, was the $2.8 million

dollar verdict excessive?

Espersen worked as bartender for Sugar Bay. On September 29, 2013, she

was terminated without drama or fanfare for violating Sugar Bay’s cash handling

policy. J.A. Vol. 1, 1045-1046. No employees authorized to speak on behalf of

Sugar Bay uttered or published a single word to any third party concerning

Espersen’s termination. J.A. Vol. 1, 1047:18-25; 1048:1-18; 1084:10-13.

Subsequently, on November 30, 2013, Espersen secured more lucrative

employment at the Marriott Vacation Club. J.A. Vol. 1, 448. Nonetheless, on July

17, 2014, she filed her two count Complaint, which she later amended. J.A. Vol. 4,

75-83 (July 19, 2017 Third Amended Complaint).

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Sugar Bay and AHRA first moved for summary judgment on July 30, 2018,

arguing inter alia conditional privilege, and that Espersen failed to allege

defamatory publication (J.A. Vol. 4, 45, 60-63). On October 5, 2018, Sugar Bay

and AHRA moved to amend their Answer to allege truth and privilege as

affirmative defenses. J.A. Vol. 4, 228. On October 17, 2018, they again moved for

summary judgment, arguing inter alia, that Espersen was not a Sugar Bay

employee as defined by Section 62 of the Wrongful Discharge Act (J.A. Vol. 5, 1),

and on October 29, 2018, they filed a supplement to their second Summary

Judgment Motion (J.A. Vol. 5, 48). The court granted in part and denied in part

Sugar Bay’s and AHRA’s motions on November 21, 2018. J.A. Vol. 5, 109.

At the February 11, 2019 trial, the court also denied both of Sugar Bay’s

Rule 50 motions. The result was the following incredible verdict:

$252,000.00 against Sugar Bay for loss of reputation and humiliation,

$189,000.00 against Sugar Bay for mental anguish, and $540,000.00 against

Sugar Bay in punitive damages for defamation; and,

$11,103.00 against Sugar Bay, Aimbridge and AHRA for loss of income and

$189,000.00 against Sugar Bay, Aimbridge and AHRA jointly and severally

for mental anguish resulting from wrongful discharge; and,

$360,000.00 against Sugar Bay for wrongful discharge punitive damages;

and,

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$750,000.00 against AHRA for wrongful discharge punitive damages, and

$500,000.00 against Aimbridge for wrongful discharge punitive damages.1

Espersen’s counsel publicly opined that her client’s award was the largest

wrongful discharge verdict in U.S. Virgin Islands’ history. J.A. Vol. 6, 55.

SUBJECT MATTER AND APPELLATE JURISDICTION

The Superior Court had subject matter jurisdiction pursuant to 4 V.I.C. §

76(a). Count I of Espersen’s Complaint alleged that she was wrongfully

discharged in violation of 24 V.I.C. § 76. J.A. Vol. 4, 75-83. Count II alleged

common law defamation. Id. Count III’s allegation of breach of the covenant of

good faith and fair dealing was dismissed by the court’s November 21, 2019

Summary Judgment Opinion. J.A. Vol. 5, 109. After the verdict awarding

compensatory and punitive damages, the Superior Court entered Judgment on

March 12, 2019. J.A. Vol. 5, 367.

This Court has jurisdiction pursuant to 4 V.I.C. § 32(a). On April 9, 2019,

Sugar Bay timely filed post-trial renewed motions for judgment as a matter of law

under V.I. R. Civ. P. 50(b) and for a new trial or relief from judgment under V.I. R.

Civ. P. 59 and 60. J.A. Vol. 6, 1; 23. The Superior Court did not address these

motions, and on August 8, 2019 (120 days after filing their post-trial Motions),

Sugar Bay timely filed the appeal. J.A. Vol. 1, 36.

1 J.A. 5, 367-369.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW AND STANDARDS OF REVIEW

1. Whether the Superior Court erred in denying Sugar Bay’s Rule 50,

59 and 60 Motions despite Espersen’s failure to produce any evidence that Sugar Bay published any defamatory statements about her?

Sugar Bay raised sufficiency of the evidence in its Rule 50(a) Motion. J.A.

Vol. 1, 743-745;id., 1307-1310;id., 1437-1438, and again in its April 9, 2019 Rule

50(b) Motion, J.A. Vol. 6, 8-16. In its Rules 59 & 60 Motion, Sugar Bay asserted

that the unduly excessive verdict warranted a new trial or relief from judgment.

J.A. Vol. 6, 33-38. The Superior Court’s rulings concerning the sufficiency or

absence of evidence are subject to this Court’s plenary review. Prince v. People,

57 V.I. 399, 405 (V.I. 2012).

2. Whether the Superior Court erred in denying Sugar Bay’s Motion for Leave to Amend its Affirmative Defenses to raise conditional privilege, and holding that Sugar Bay waived its conditional privilege affirmative defense, when this is a substantive element of common law defamation?

Sugar Bay raised this issue in its October 5, 2018 Motion to Amend its

Answer to raise conditional privilege as its tenth affirmative defense, J.A. Vol. 4,

228-233; id., 397-398. The Court’s November 21, 2018 Order denied leave to

amend. J.A. Vol. 5, 109. Sugar Bay also raised this issue in the jury instruction

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conference, J.A. Vol. 1, 1152-1155, and in its April 9, 2019 Rule 50(b) Motion,

J.A. Vol. 6, 15-16.

This Court ordinarily reviews the denial of a motion to amend an answer or

other pleading for abuse of discretion. Harvey v. Christopher, 55 V.I. 565, 577

(V.I. 2011). However, review is plenary when the Superior Court exercises its

discretion based on the interpretation of application of a legal precept. Stiles v.

Yob, No. 2016-0036, 2016 WL 3884506, at *3 (V.I. July 13, 2016).

3. Whether the Superior Court erred as a matter of law by denying Sugar Bay’s Rule 50, 59 and 60 Motions concerning punitive damages on defamation?

Sugar Bay objected to defamation punitive damages in its Rule 50(a)

Motion, J.A. Vol. 1, 746-747; id. 1308-1310; id. 1451-1453, and in its April 9,

2019 Rule 50(b) Motion, J.A. Vol. 6, 2-9. In its April 9, 2019 Rule 59 & 60

Motion, Sugar Bay asserted that the excessive verdict warranted a new trial or

relief from judgment. J.A. Vol. 6, 33-40. In considering the Superior Court's

denial of a motion for judgment as a matter of law, and its denial of a motion for a

new trial or relief from judgment, this Court’s standard of review is plenary. Tip

Top Constr. Corp. v. Austin, No. S.CT.CIV. 2017-0045, 2019 WL 2464620, at *2

(V.I. June 11, 2019); see also Charles v. Payne, S.Ct. Civ. No.2018-0012, 2019

WL 2487750, at *2 (V.I. June 12, 2019) (“... a scintilla of evidence is not enough

to sustain a verdict of liability”).

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4. Whether the Superior Court erred as a matter of law in determining that Espersen was an “employee” within the meaning of 24 V.I.C. § 62?

Sugar Bay raised this issue in its October 17, 2018 Second Joint Motion for

Summary Judgment and October 29, 2018 Supplement. J.A. Vol. 5, 8-63. The

Superior Court denied this Motion in its November 21, 2018 Memorandum

Opinion. J.A. Vol. 5, 109-153. Sugar Bay again raised this issue at trial in its Rule

50(a) Motion, J.A. Vol. 1, 1310-1311, and subsequently in its April 9, 2019 Rule

50(b) Motion. J.A. Vol. 6, 16-20. This Court reviews an “issue of statutory

interpretation de novo.” Virgin Islands v. Connor, 60 V.I. 597, 601 (V.I. 2014).

5. In the alternative, whether the Superior Court erred as a matter of law by not limiting Espersen’s noneconomic damages for her wrongful discharge claim to her period of unemployment, and by denying Sugar Bay’s Rule 59 and 60 Motions based upon excessiveness of the verdict?

Sugar Bay moved the court to limit Espersen’s counsel from referencing

mental anguish secondary to her claims of wrongful discharge for any period after

November 30, 2013. J.A. Vol. 5, 163, 183-185, J.A. Vol. 6, 145-148. The

Superior Court rejected Sugar Bay’s argument in its January 25, 2019 Order. J.A.

Vol. 5, 342, 346, 351-352. Sugar Bay raised the issue at trial, J.A. Vol. 1, 1167-

1170, but the court declined to issue an instruction limiting Espersen’s economic

damages to the eight weeks she was unemployed. Sugar Bay again raised this

issue in its Rule 50(b) Motion and Reply, J.A. Vol. 6, 20 ; id., 130-131. In its

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April 9, 2019 Rule 59 & 60 Motion and Reply, Sugar Bay asserted that the law of

the case with respect to non-economic damages, and the excessiveness of the

verdict warranted a new trial or relief from judgment. J.A. Vol. 6, 95; id. 148-159.

This Court reviews an “issue of statutory interpretation de novo.” Connor, 60 V.I.

at 601. The denial of the motion for new trial is subject to plenary review. Tip

Top Constr., 2019 WL 2464620, at *2.

6. Whether the Superior Court erred as a matter of law by denying Sugar Bay’s Rule 50 Motion concerning punitive damages on the

wrongful discharge claim and 59 and 60 Motions denying Sugar Bay’s motion for a new trial or for relief from judgment based upon the excessiveness of the verdict?

Sugar Bay objected to wrongful discharge punitive damages in its Rule 50(a)

Motion, J.A. Vol. 1, 746-747; id. 308-1309, id. 1451-1452, in its April 9, 2019,

Rule 50(b) Motion, J.A. Vol. 6, 2-9, and in its Reply, id., 131-138. In its Rule 59

& 60 Motion, Sugar Bay asserted that the excessiveness of the verdict warranted a

new trial or relief from judgment. Id., 148-155. In considering the Superior

Court's denial of a motion for judgment as a matter of law, and its denial of the

motion for a new trial or relief from judgment, the Supreme Court’s standard of

review is plenary. Tip Top Constr. Corp., 2019 WL 2464620, at *2.

7. Whether the Court erred as a matter of law by improperly admitting Sugar Bay’s purported web page into evidence without authentication and by allowing the CD of the Virgin Islands Department of Labor hearing to be admitted into evidence?

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Sugar Bay objected to the admission of the website, J.A. Vol. 1, 1534-1537,

and raised this evidentiary error in its Rule 59 & 60 Motion for a New Trial at J.A.

Vol. 6, 159-161. In the January 25, 2019 Order, the court ruled that the

Department of Labor Determination was inadmissible on the defamation claim

because it was not Sugar Bay’s speech. J.A. Vol. 5, 348-349. At trial, the court

ruled that a recording of the hearing would be admissible only for impeachment

purposes, and that no basis had been established to impeach witness Carrie Combs.

J.A. Vol. 1, 309, id. 532-534. Sugar Bay discovered after trial that, despite this

clear ruling, the recording was among the exhibits admitted into evidence and

made available to the jury. J.A. Vol. 2, 269. Sugar Bay raised the issue in its April

9, 2019 Rule 59 & 60 Motion for a New Trial, J.A. Vol. 6, 159. A trial court's

decision to admit or exclude evidence is reviewed for abuse of discretion. Hodge

v. McGowan, No. CIV. 2007-057, 2008 WL 4924628, at *5 (V.I. Nov. 10, 2008).

However, this Court’s review is plenary “to the extent that the ruling was based on

an interpretation and application of a legal precept.” Gould v. Salem, No.

S.CT.CIV. 2010-0098, 2013 WL 5348463, at *3 (V.I. Sept. 25, 2013).

STATEMENT OF OTHER PROCEEDINGS

This matter has not been previously before the Supreme Court and Sugar

Bay is not aware of any proceeding that is related to this matter whether

completed, pending, or about to be presented before this or any other court.

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STATEMENT OF THE FACTS

Espersen was a bartender at Sugar Bay when she was observed by two

managers serving drinks to non-registered guests of the all-inclusive hotel and

receiving a cash payment that was not recorded at the end of her shift. J.A. Vol. 1,

496; J.A. Vol. 1, 813. Sugar Bay and AHRA, the human resources company

retained by Sugar Bay, conducted an investigation. AHRA recommended to Sugar

Bay that Espersen either be removed from a cash handling position or terminated.

J.A. Vol. 1, 588; Jid. 1027-1037. Because there were no available non-cash

handling positions, Sugar Bay terminated Espersen on September 29, 2013. J.A.

Vol. 1, 1045-1046. At no time during the investigation did any person authorized

to speak for Sugar Bay ever call Espersen a thief or allege that she stole. J.A. Vol.

1, 1046.

On November 30, 2013, Espersen was hired by Marriott Vacation Club at a

higher rate of pay, and soon thereafter, Espersen became eligible to earn

commissions, further increasing her earnings. J.A. Vol. 1, 446. Espersen remained

employed by Marriott through the date of the trial. J.A. Vol. 1, 700-702.

ARGUMENT

I. DEFAMATION

A. There was No Evidence of an Unprivileged Publication of Defamatory Statements to Third Parties

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In the Virgin Islands, defamation requires: (a) a knowingly false and

defamatory statement concerning another; (b) an unprivileged publication to a third

party; (c) fault amounting at least to negligence on the part of the publisher; and (d)

either actionability of the statement irrespective of special harm or the existence of

special harm caused by the publication. Espersen v. Sugar Bay Club & Resort

Corp., Civil No. ST-14-CV-355, 2018 WL 6177341, at *4 (V.I. Super. Nov. 21,

2018); see also J.A. Vol. 1, 1410 (instructing the jury on these elements).

Consistent with these elements, a plaintiff must allege and prove “the existence of

an unprivileged publication [of a false and defamatory statement] to a third party.”

Arvidson v. Buchar, 2017 WL 3670198, at *2 (V.I. Super. Ct. Feb. 2, 2017).

The “officers, agents or employees” of Sugar Bay who could speak for the

corporation were Joseph Talbert (food and beverage manager), Kashmie Ali

(general manager), Dusty Goode (loss prevention manager), and Carrie Combs (the

principal of AHRA, which acted as a HR consultant to Sugar Bay). If Espersen

was defamed by Sugar Bay, only this cast could defame her. Their exchanges

concerning Espersen occurred exclusively between and among Sugar Bay

management, in the context of investigating her conduct and evaluating the

decision to terminate her. There was absolutely no evidence adduced at trial that

any of them communicated to any third parties that Espersen was a thief, dishonest,

or that she was terminated for stealing.

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During her case in chief, Ali was the only Sugar Bay witness that Espersen

called to testify, via his designated deposition testimony. J.A. Vol. 1, 576-601.

There was no evidence that Ali made any defamatory statements about Espersen.

To the contrary, he explained that he “was advised or I was briefed on the fact that

Carolyn had violated company policy from a cash handling point of view.” J.A.

Vol. 1, 588. Ali testified that “[i]f it involved an HR situation, I would be briefed

by the HR Manager.” Id. There was no evidence that Ali was told that Espersen

was a thief, let alone that Ali published any such statement to a third person.

Significantly, Espersen did not call any other person who could bind Sugar

Bay. Instead, she exclusively relied upon testimony of co-workers, family, and her

own testimony. But even construed in the light most favorable to Espersen, none

of this evidence demonstrated that Sugar Bay published any defamatory statements

about Espersen. For example, Espersen’s former co-worker, Heather Nettleman,

testified that when she returned to work, she learned that Espersen had been

suspended because unidentified “other people, bartenders, servers, the security. A

lot of people were talking about it.” J.A. Vol. 1, 735. Above Sugar Bay’s hearsay

objection, the Court erred by allowing Nettleman to further testify that these

unidentified people “felt that [Espersen] had stolen money that wasn’t hers . . . .”

id. (emphasis added). However, court error notwithstanding, Nettleman never

testified how she knew what these unidentified individuals “felt,” let alone that

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these “feelings” were attributable to any publication by Ali or anyone else

authorized to speak on Sugar Bay’s behalf. Again referring to unidentified

individuals, Nettleman testified that “[t]here were people that didn’t work with her

very closely that were going around saying things like, “oh, Carolyn was stealing,”

and that after Espersen was terminated, unidentified “[p]eople were saying that she

had stolen money.” J.A. Vol. 1, 736-737. Nettleman never identified any

authorized representative of Sugar Bay (or any specific individual whatsoever) as

the source of these statements.

As a matter of law, Sugar Bay is not liable for rumors sourced from persons

without authority to speak for Sugar Bay. Instead, as the Court instructed the jury:

A corporation must act through people performing as its directors, officers, agents or employees. In general, any directors, officers, agents or employees of a corporation may bind the corporation by their acts and statements made while acting within the scope of their authority delegated to them by the corporation or within the scope of their duties for the corporation. Any act or omission of a director, officer, employee, or other agent of a corporation, in the performance of that person's duties, is considered to be the act or omission of the corporation.

J.A. Vol. 1, 1401. In other words, ithout linking the gossip at the hotel to any

authorized representative of Sugar Bay, Nettleman’s testimony did not support a

finding of defamation liability against Sugar Bay.

Furthermore, none of Espersen’s other witnesses, including her mother,

Maureen Petersen, her sister Cherri Espersen or her jaded former co-workers,

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Quinton Riley, and Lamont Joseph, identified a single defamatory statement made

by any representative of Sugar Bay. J.A. Vol. 1, 323-352 [M. Petersen]; J.A. Vol.

1, 626-629 [Q. Riley]; 2 J.A. Vol. 1, 651-654 [L. Joseph];3 J.A. Vol. 1, 683-708 [C.

Espersen].

Espersen’s evidence established only that she self-reported to her co-

workers, family members and John Huffman (her alibi witness) that she was being

investigated for theft, and later told her friends, family, colleagues and former co-

workers that she was fired for stealing. Espersen testified as follows:

Q. So what did you have to tell Mr. Huffman was the reason why you were talking to him? A. I told him that they accused me of taking $20 from a guest from Point Pleasant that didn’t have a wristband at the pool bar.

J.A. Vol. 1, 426:22-25; J.A. Vol. 1, 427:1-2; see also J.A. Vol. 1, 330:9-10 [Ms.

Petersen – Espersen’s Mother] (“She told me that they said she stole $20.”);4 see

also J.A. Vol. 1, 685:3-4 (“…she told me that she had been accused of stealing

money”); id. 686:14-17 [Espersen’s sister](“She told me that, you know, that she

2 Riley was never asked if he heard any statements about Espersen and he never testified about any statements. Instead, he merely testified that Carrie Combs was involved in his termination. Notably, the Superior Court also erred by admitting Riley and Joseph’s termination testimony over Sugar Bay’s V.I. R. Evid. 404 objection. J.A. Vol. 1, 633, 653. 3 Like Riley, Joseph merely testified that he also had been terminated from Sugar Bay. He never testified that he heard any statements about Espersen. 4 Espersen’s mother testified that she was in Washington when her daughter was suspended and terminated and knew only what Plaintiff told her. J.A. Vol. 1, 345.

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had been accused, she thought she had proven that she hadn't stolen the money, but

she was fired anyway.”).5 Espersen herself testified that she had no evidence that

Sugar Bay defamed her with any potential employer. J.A. Vol. 1, 535-536.

Because Espersen’s only evidence supporting publication were her own

statements, on the eve of trial, she filed a brief advancing the argument that

“compelled self-publication” should be adopted as Virgin Islands law and later

requested a jury instruction to the same effect. J.A. Vol. 1, 766:1-7; 767:10-24.

The court properly rejected that argument. Id. at 768-770.

At the conclusion of Espersen’s case-in-chief, Sugar Bay argued that it was

entitled to judgment dismissing the defamation claim:

Miss Espersen has not put on any witnesses that testified that any of Sugar Bay’s employees, be it Dusty Goode or Joseph Talbert,6 made any comments to any third parties about Miss Espersen. . . . There’s no testimony that Sugar Bay told any third party that she was a thief or even that she was terminated at all. Additionally, there’s been no documents admitted into evidence that Sugar Bay made any representations to any third party that Miss Espersen stole or that she was a thief. . . . So on that basis, with respect to Sugar Bay, Sugar Bay argues that the plaintiff has not made out their [sic] case for defamation.

5 Espersen’s sister confirmed that she did not speak with Sugar Bay representatives. J.A. Vol. 1, 691:11-14, 692:17-24; 693:1-10. 6 Espersen did not call Goode or Talbert during her case-in-chief, and Ali did not testify about any statements made by either Goode or Talbert.

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J.A. Vol. 1, 744-746; see also J.A. Vol. 1, 1307 (arguing that no management

personnel ever communicated to any third party, “anything that was defamatory

with respect to Miss Espersen”).

In opposing the Rule 50 Motion, Espersen argued:

As to defamation, we presented the Court with the false – the discipline, suspension, where’s accused of stealing cash for a drink. There’s no claim of privilege in this case. That document was then processed and served and signed by Cory Santana, Miss Combs, and various persons in Sugar Bay. We’ve put on evidence of Miss Nettleman that that document was then obviously published, or the contents of that document was published as virtually every employee at the resort knew that she had been terminated for being a thief, as she had been suspended and then terminated for being a thief. So that we have shown that it was recklessly published such that virtually all the employees in the resort were aware of that.

J.A. 1, 752-753 (emphasis added). Contrary to this unfounded summary,

Nettleman never testified that she saw any document prepared by Santana or

Combs (neither of whom were called in Espersen’s case in chief), or that she

learned about the contents of Espesen’s employment file or any Sugar Bay

“document”. Additionally, Espersen testified that, she was provided with the

Associate Performance Review, J.A. Vol. 2, 96. (describing the alleged violation of

Sugar Bay’s Cash Handling Policy), in a closed-door meeting with Joseph Talbert.

There was no evidence that Sugar Bay distributed that document to anyone other

than Espersen, and the only reference to stealing therein, was Espersen’s own

handwritten response, in which she stated in part, “I would never steal and I have

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never stole money.” J.A. Vol. 2, 96 [Espersen’s Associate Performance Action

Review]; J.A. Vol. 1, 419 (Espersen’s testimony concerning her closed-door

discussion with Joseph Talbert).

The remainder of the trial provided absolutely no evidence that Sugar Bay

made or published any defamatory statements about Espersen to any third party.

Dusty Goode’s and Gina Castro’s involvement in this matter was the preparation

of emails observing what they saw at about 3:30 p.m. on September 13, 2013.

Dusty Goode, Sugar Bay’s loss prevention manager wrote:

Good Afternoon Joe,

Today at approximately 3:30pm Gina and myself were having lunch at Mangrove when we noticed a man and women with no wristbands, neither visitor band nor registered guest band. They were using the poolside chairs in front of the pool volleyball net and using SBR towels. Gina recognized the man as someone that she had seen before on SBR property and l that lives at Point Pleasant. As we continued to observe them, the female walked towards the pool bar and ordered drinks from Caroline. Caroline made the drinks and handed them to the female un-registered guest. The unregistered guest then handed Caroline some money and walked away with two drinks, Caroline accepted the money and put it directly into the tip J.A.r on the pool bar counter. No change was given back and Caroline did not go near the register. Also Dorette, the pool side LP officer was walking around the pool but was not engaging the guests and did not stop and talk to the non-registered guests. I will be following up with Dorette on my end and issuing documentation. Gina's witness statement to follow. Thank you, Dusty

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J.A. Vol. 2, 147.

In its November 21, 2018 Opinion, the Superior Court held that Plaintiff’s

defamation claim survived summary judgment because there was a genuine issue

of material fact about whether Dusty Goode’s September 15, 2013 e-mail carried

the “implication of defamation.” J.A. Vol. 5, 109; Espersen, 2018 WL 6177341, at

*14. However, as a matter of law, because Espersen’s operative Complaint alleged

defamation per se, it was not enough for Espersen to show that the alleged

defamatory meaning was a reasonable one; she was also required to show at trial

that Sugar Bay knew that the statement was false and intended to convey the

allegedly defamatory meaning to a third party. Kendall v. Daily News Pub. Co.,

S.Ct. Civ. No. 2010-0046, 2011 WL 4434922, at *4 (V.I. Sept. 21, 2011).

At trial, there was no evidence that “officers, agents or employees” of Sugar

Bay who could “bind the corporation,” J.A. Vol. 1, 1401:13-25, actually knew that

any purported statement concerning Espersen was false at the time that it was

made, or that Sugar Bay intended to convey a defamatory meaning over a non-

defamatory meaning to any third party. Additionally, there was no evidence that

Sugar Bay published Goode’s email to anyone.

Gina Castro, the Head of Housekeeping, sent an email about her eyewitness

observation only to personnel involved in Espersen’s investigation. J.A. Vol. 2,

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107. Castro described the incident as an exchange of cash for a drink between

Espersen and a female guest and Espersen placing cash in her tip jar. Neither this

e-mail, nor any other include the words “stole”, “thief” or “theft” or accused

Espersen of stealing. See J.A. Vol. 1, 1024-1026 (“Q. Does either document

accuse Miss Espersen of theft? A. No. Q. Does either document accuse Miss

Espersen of stealing anything? A. No.”).7 Gina Castro’s statements cannot bind

the corporation because they were not within the scope of her authority or duties as

an Executive Housekeeper. J.A. Vol. 1, 822 (“I was responsible for monitoring the

activities and the cleanliness of the resort.”). Further, there was no evidence that

Castro’s e-mail was published to anyone.

The Associate Performance Action Form is merely a restatement of Dusty

Goode’s and Gina Castro’s e-mails. J.A. Vol. 2, 96; J.A. Vol. 2, 107; J.A. Vol. 2,

147. Like the Goode and Castro e-mail communications, the Performance Action

Form was never published to anyone except Espersen and do not include the words

“stole”, “thief” or “theft.” See id.

Additionally, Combs testified that: she never referred to Espersen as a thief;

no Sugar Bay manager ever called or referred to Espersen as a thief in her

presence; Combs never told anyone that Espersen was terminated for stealing; and

7 Communications concerning Espersen were kept only in an employment file. J.A. Vol. 1, 1035:3-10. Notably, no witness testified that Castro made any written or verbal statement about Espersen.

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no one during the course of her investigation indicated to any third party that

Espersen had stolen. J.A. Vol. 1, 1047:18-25; 1048:1-18; 1084:10-13. The only

time the word stealing was ever mentioned by any Sugar Bay staff was when

Goode explained at trial what he thought had transpired.

When asked during trial what rule Goode thought that Espersen violated, he

testified, “I believe that she took the money that -- I guess, stealing[.]” J.A. Vol. 1,

964:4-5. Importantly, there was no evidence presented that Goode ever

communicated his subjective thoughts, verbally or in writing to anyone, and his

trial testimony clearly could not support Espersen’s defamation claim. Without

evidence of a pre-trial publication of these mental impressions to any third party,

Goode’s testimony at trial about his subjective impressions do not support a

defamation finding. Based upon the complete absence of any evidence of

publication or of any defamatory material, Sugar Bay renewed its Rule 50 motion

at the close of all of the evidence. J.A. Vol. 1, 1303.

Judgment as a matter of law on defamation did not require the trial court,

and does not require this Court, to weigh Espersen’s credibility, or the credibility

of any witnesses because there was no testimonyor evidence to weigh. There was

no evidence that Sugar Bay published any written or oral statements about

Espersen or her termination to any of her potential employers, former co-workers,

or to anyone else. Conceding as much, Espersen’s counsel responded to Sugar

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Bay’s Rule 50 motion by arguing that “the documents that were given by Mr.

Goode, who was a manager, and Miss Castro who are managers, to Mr. Talbert

were then put into her personnel file indicates that she received cash for a drink

and failed to pay it to the restaurant.” J.A. Vol. 1, 1316.

Any statement to Espersen about the reason for her termination would not

support her defamation claim, because “‘[p]ublication’ means the communication

is made either as an intentional or negligent act to someone other than the person

defamed.” Joseph v. Daily News Publ'g Co., Inc., 57 V.I. 566, 586 (V.I. 2012)

(emphasis added). However, placement of a document in Espersen’s personnel file

is not publication, as there was no claim (or evidence) that Espersen’s personnel

file was shared with any third parties (let alone that anything in her file used the

word “stole”, “thief” or “theft.”). Because there was absolutely no evidence of

defamation or publication by Sugar Bay, Sugar Bay was entitled to Judgment as a

Matter of Law on defamation.

B. Even if There was Evidence of Publication, the Superior Court Erred in Determining that Privilege and Truth Were Affirmative Defenses That Had Been Waived By Sugar Bay

It is undisputed that the only communication concerning Espersen was by

and between personnel directly involved in Espersen’s investigation or

termination. In its November 21, 2018 Opinion, the Superior Court held that Sugar

Bay waived its affirmative defenses of truth and conditional privilege by not

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• “The statement of facts concerning Plaintiff that she alleges are false are substantially true.

In its November 21, 2018 Opinion, the court wrongly concluded that “Espersen

would be deprived of the opportunity to explore the merits of the conditional

privilege defense in discovery, including any facts necessary to defeat it.” J.A.

Vol. 5, 109; Espersen, 2018 WL 6177341, at *2-5. Espersen, however, would not

have suffered prejudice because the unprivileged nature of defamatory statements

were thoroughly explored by Espersen in discovery because lack of privilege is a

substantive element of defamation, that Espersen was required to plead and prove.

As such, Espersen had already demanded and received discovery and deposed

Sugar Bay’s employees about the alleged communications at issue. Indeed, in

Espersen’s Opposition, she argued that Sugar Bay made unprivileged publications

by: placing documents in Espersen’s personnel file, in her file with the Virgin

Islands Employment Security Agency for Unemployment, and in Sugar Bay’s

responses to Interrogatories. J.A. Vol. 4, 271-273 (Pl.’s Opp. To Mot. To Amend).

Thus, Sugar Bay should have been allowed to raise this defense and suffered

incredible prejudice from the court barring Sugar Bay from raising this defense at

trial. The fact that the record is devoid of defamation evidence, taken together

with the trial court’s error in preventing Sugar Bay to raise truth and conditional

privilege prior to trial, require vacation of the defamation verdict or a new trial.

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raising them in an earlier iteration of its Answer. J.A. Vol. 5, 109; Espersen, 2018

WL 6177341, at *4 (citing Mills-Williams v. Mapp, No. 2016-0054, 2017 WL

2998939, at *11 (V.I. July 14, 2017)).

Assuming the arguendo, that this honorable appellate Court finds that there

was sufficient evidence of publication, the Superior Court’s decision must

nonetheless be overturned on two bases. First, Mills-Williams does not stand for

the proposition that conditional privilege is waived if not raised as an affirmative

defense to defamation. Instead, Mills-Williams holds that “immunity” (not

privilege) is a waivable affirmative defense. 2017 WL 2998939, at *11. Second

and most importantly, falsity and unprivileged publication are explicit elements of

defamation that must be pled and proven by a plaintiff. Chapman v. Cornwall, No.

S.Ct. Civ. No. 2012-0032, 2013 WL 2145092, at *6 (V.I. May 15, 2013). The trial

court cannot scale away these elements of the common law claim by requiring a

defendant to assert (and prove) that the publication was privileged.

Finally, even if the Superior Court correctly ruled that a defendant must

affirmatively plead absolute or conditional privilege, the Court abused its

discretion by denying Sugar Bay’s October 5, 2018 Motion to Amend its Answer

to the Third Amended Complaint to add the following affirmative defenses:

• “Plaintiff's defamation claims are barred by a conditional privilege concerning communications between parties having a common interest in the subject matter”; and

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C. The Superior Court Erred by Denying Sugar Bay’s Motion for New Trial Based Upon the Excessiveness of the Defamation Verdict

Even if Sugar Bay somehow could be found liable for defamation, the

Superior Court should have granted its motion for a new trial based upon the

excessiveness of the verdict. As Sugar Bay argued, a new trial may be granted for

reasons which include “excessive . . . damages.” V.I. R. Civ. P. 59(a)(1)(A)(iv);

see Motion for a New Trial. at J.A. Vol. 6, 33-39; Reply at J.A. 6, 148-150.

On the defamation claim alone, the jury awarded Plaintiff $441,000.00 in

compensatory damages, including $252,000.00 to compensate Plaintiff for “loss of

reputation.” Yet, there was no evidence whatsoever that any statement made by

Sugar Bay affected Espersen’s reputation. Although this Court has held that

remittitur is not available, the rules expressly permit this Court to order a new trial

when the record as a whole demonstrates that the verdict is so excessive that it

could not be the product of anything other than passion or prejudice.8 In this case,

the only plausible explanation for an award of defamation damages that was nearly

40 times Espersen’s loss, and which included a substantial amount for loss of

reputation despite the absence of any supporting evidence, was that the jury was

improperly motivated by passion and prejudice.

8 Sugar Bay incorporates by reference the Banks analysis and other legal arguments advanced by Aimbridge concerning the authority of this Court to grant a new trial on the grounds of excessive damages, which analysis Sugar Bay also raised below. See Rule 59 Reply Brief at J.A. Vol. 6, 148-153.

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D. At a Minimum, the Punitive Damages Portion of the Defamation Award Must Be Vacated

Under Virgin Islands law, “a request for punitive damages is not an

independent cause of action." Bertrand v. Mystic Granite & Marble, Inc., 63 V.I.

772, 783 n.6 (V.I. 2015). Because defamation fails as a matter of law, Espersen

was not entitled to an award of punitive damages. Alternatively, even if there was

sufficient evidence to support a judgment on the defamation claim, the award of

punitive damages must be vacated, or a new trial must be ordered.

1. As a Matter of Law, Punitive Damages Requires an Exceptionally High Burden of Proof.

“Plaintiff must meet an extremely high burden of proof to establish

entitlement to punitive damages,” Thomas Hyll Funeral Home, Inc. v. Bradford,

233 F. Supp. 2d 704, 713 (D.V.I. 2002), and such an award “should only be

granted in exceptional circumstances.” Adams v. North West Co. (Int'l), Inc., 63

V.I. 427, 443 (V.I. Super. Ct. 2015); Le Marc's Mgmt. Corp. v. Valentin, 709 A.2d

1222, 1227 (1998) (vacating punitive damages award on defamation).

“Under Virgin Islands law, in order to be eligible for punitive damages the

plaintiff is required to show by clear and convincing evidence that 'the acts

complained of were outrageous, done with evil motive or reckless indifference to

the plaintiffs’ rights.”’ Thomas Hyll Funeral Home, Inc., 233 F. Supp. 2d at 713.

This Court has held that punitive damages are “damages awarded in cases of

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serious or malicious wrongdoing to punish or deter the wrongdoer or deter others

from behaving similarly. . . .” Cornelius v. Bank of Nova Scotia, No. S. Ct. Civ.

No. 2015-0058, 2017 WL 3412202, at *9 (V.I. Aug. 8, 2017) (emphasis added).

Punitive damages must be based upon conduct that is not just negligent but shows,

at a minimum, intentional conduct, or reckless indifference to the person injured—

conduct that is outrageous and warrants special deterrence. Id; St. Croix

Renaissance Group, LLP v. St. Croix Alumina, LLC, Civ. No. 04–67, 2011 WL

2160910, at *11 (D.V.I. May 31, 2011).

Given this high standard, considerable, persuasive authority exists for post-

trial denials of punitive damage awards. In Cornelius, this Court affirmed the

Superior Court’s denial of a punitive damages award where appellants failed to

offer any proof of outrageous conduct or evil intent sufficient to establish

punitive damages in a breach of contract case. 2017 WL 3412202, at *10 (“. . .

Appellants failed to offer any proof to establish a claim of punitive damages.”)

(citing Guardian Ins. Co. v. Joseph, No. CIV. 93-151, 1994 WL 714190, at *4

(D.V.I. Oct. 25, 1994) (denying punitive damages award due to insufficient

proof)).

In In re Lemington Home for the Aged, the Third Circuit reviewed a lawsuit

concerning the mismanagement of a Pittsburgh-area nursing home. 777 F.3d 620,

631 (3d Cir. 2015). The plaintiff filed suit against the nursing homes’ two former

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Officers and several former Directors. Id. A jury found them all liable for breach

of fiduciary duty and imposed punitive damages. Id. While upholding the jury’s

verdict as to liability, the Third Circuit held that the evidence did not contain the

minimum quantum of proof of outrageous conduct necessary to support

a punitive damages award against the Director-Defendants. Id. Accordingly, the

Court vacated punitive damages imposed against five of the Director Defendants.

Id. at 624.

Here, a punitive damages directed verdict was warranted in Sugar Bay’s

favor because there was absolutely no evidence adduced that any managerial

employee of Sugar Bay acted with evil motive or reckless or callous disregard of

Espersen’s rights by publishing any statement about Espersen. Adams, 63 V.I. at

443 (“punitive damages should only be granted in exceptional circumstances.”).

2. The Only Support for Punitive Damages Was the Inflammatory Statements of Counsel.

Despite the court’s admonition to Espersen to avoid referring to Department

of Labor documentation because it was not Sugar Bay’s speech (J.A. Vol. 1, 301-

305:6; J.A. Vol. 1, 322), and its explicit Order for Espersen to not overuse the

terms “stole” or “thief” when there was no supportive evidence (J.A. Vol. 5, 348-

349) [January 25, 2019 Order on Omnibus Motions in Limine]), at trial Espersen’s

counsel stated “[Espersen] goes to the Department of Labor and she applies for

unemployment. And what does Sugar Bay do? Sugar Bay says, don’t pay this

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woman unemployment, she's a thief, she stole money, $20.” J.A. Vol. 1, 279:10-

23 (emphasis added). Espersen’s counsel doubled down on this false,

inflammatory position when she repeated that Sugar Bay and its co-defendants

labelled “her as a thief.” J.A. Vol. 1, 281:12-13 (emphasis added). Misstating

facts, Espersen’s counsel also declared that Carrie Combs told Espersen, “I'm

sorry, you're terminated, you can't come back, we find you're a thief.” J.A. Vol. 1,

279:4-6 (emphasis added). Counsel’s misdirection became a running theme

throughout trial. See J.A. Vol. 1, 1325:6-7 (“… my client should have never been

called a thief.”); J.A. Vol. 1, 1337:7 (“She was labeled a thief.”); J.A. Vol. 1, 1382

([Carrie Combs] . . . “called her a thief in her affidavit”); Id. at 1388:18-22(“But

nobody should put up with being called a thief . . . ).

"[A] new trial may be ordered where the conduct of counsel improperly

influenced the deliberative process.” Hodge v. Bluebeard's Castle, Inc., No. Civ.

92511997, 2002 WL 1906546 at *1 (V.I. Terr. Ct. July 18, 2002), vacated, 2009

WL 891896 (D.V.I. Apr. 1, 2009). “The test for determining whether to grant a

new trial in cases involving counsel misconduct is ‘whether the improper

assertions have made it ‘reasonably probable’ that the verdict was influenced by

prejudicial statements.”’ Henry v. Hess Oil Virgin Islands Corp., 33 V.I. 163, 167

n.3 (D.V.I. 1995). Improper statements by counsel are “sufficient to warrant a new

trial” if there exists an “enormous discrepancy between the evidence and the

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verdict amount.” See Virgin Island Mar. Serv., Inc. v. Puerto Rico Mar. Shipping

Auth., 37 V.I. 193, 212 & 215 (D.V.I. 1997).9 Because the only support for the

excessive punitive damages awards was counsel for Espersen’s improper,

inflammatory statements that violated the Court’s pretrial order prohibiting

repeated use of the terms thief and stole, the punitive damages award must be

vacated or a new trial is warranted.

3. The Excessive Punitive Damages Award Is Unconstitutional and Violated Sugar Bay’s Due Process Rights

U.S. Supreme Court precedent makes clear that punitive-damages awards

that violate the U.S. Constitution cannot stand. See, e.g., State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 416, 419-20 (2003); Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1, 22 (1991); see also BMW of N. Am., Inc. v. Gore, 517 U.S.

559, 568 (1996) (imposing punitive damages in amount greater than needed for

purposes of punishment or deterrence violates the Federal Due Process Clause).

Similarly, the Revised Organic Act of the Virgin Islands expressly incorporates the

protections of the Federal Due Process Clause. See 48 U.S.C. § 1561 (“No law

shall be enacted in the Virgin Islands which shall deprive any person of life,

liberty, or property without due process of law or deny to any person therein equal

9 Sugar Bay incorporates by reference the Banks analysis and related arguments of law and discussion of the record set forth in Aimbridge’s opening brief concerning the authority for granting a new trial based upon improper arguments of Espersen’s counsel.

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protection of the laws.”). It is axiomatic that “in the event of a constitutional

violation ‘all reasonable methods be available to formulate an effective remedy.’”

Hills v. Gautreaux, 425 U.S. 284, 297 (1976) (quoting N. Carolina St. Bd. of Ed. v.

Swann, 402 U.S. 43, 46 (1971)). Here, an effective remedy for the excessive

punitive damages awards can take only one of two forms: either a reduction in the

punitive damages awards or a new trial. Cf. Browning-Ferris Indus. of Vt., Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) (considering whether excessiveness

of punitive-damages award required “a new trial or remittitur” under Federal Rule

of Civil Procedure 59).

In this case, the compensatory damages award for the defamation claim

consisted entirely of non-economic damages, including for “mental anguish.” As

this award already contained a punitive element, State Farm, 538 U.S. at 426, the

additional award of punitive damages either necessitates a new trial or an amended

judgment.

II. WRONGFUL DISCHARGE

A. Because Espersen Was Not an “Employee” Within the Meaning of 24 V.I.C. § 62, the Wrongful Discharge Verdict Must Be Vacated

The Wrongful Discharge Act (“WDA”) allows any “wrongfully discharged

employee . . . [to] bring an action for compensatory and punitive damages . . .

against any employer who has violated the provisions of section 76 of . . . chapter

[24].” 24 V.I.C. § 79. Section 62 defines employee as “any employee or other

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individual whose work has ceased as a consequence of, or in connection with, any

current labor dispute or because of any unfair labor practice, and who has not

obtained any other regular and substantially equivalent employment . . . .” 24

V.I.C. § 62 (emphasis added). As this Court has explained, “the conjunction ‘and’

means ‘in addition to’ or ‘along with.’” In re Baby E.C. Through Shearer, 69 V.I.

826, 338 (V.I. 2018); Galloway v. People, 57 V.I. 693, 702 (V.I. 2012) (explaining

that “both common sense and the traditional rules of English grammar dictate that .

. . the word ‘and’ is being used as a conjunctive”).

As the evidence established, under Sugar Bay’s employ, Espersen earned

$6.20 an hour. J.A. Vol. 1, 496. She was terminated effective September 29,

2013. Id. at 436. On November 30, 2013, Espersen began working at the Marriott

Vacation Club. Id. at 445-447. For the first three months of her employment,

Espersen earned $10 per hour and worked 40 hours per week. Id. at 447.

Thereafter, Espersen became eligible for commissions based upon the tours she

booked and based upon the sales resulting from those tours. Id. As a result,

Espersen clearly was earning more than the amount of money that she had earned

at Sugar Bay. Id. at 448. Several months later, Espersen filed her July 17, 2014

Complaint.

The Third Circuit Court of Appeals in Booker v. Taylor Milk Co., 64 F.3d

860, 866 (3d Cir. 1995) defined “substantially equivalent employment” as “…that

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employment which affords virtually identical promotional opportunities,

compensation, job responsibilities, and status as the position from which the []

claimant has been [] terminated….” Because Espersen obtained regular (i.e., full

time) employment that met (and exceeded) the substantial equivalence of the

position she held as a bartender at Sugar Bay, she was not an employee as defined

by the WDA because she did not meet one of the criteria set forth in the definition

of that term.

The Superior Court, however, disregarded the WDA’s plain language and

ruled that “[a]lthough . . . the record shows that Espersen obtained substantial and

even more lucrative employment prior to filing her original Complaint, Espersen

nonetheless constituted an employee from the date [she] was terminated until she

secured ‘other regular and substantially equivalent employment.’ Accordingly, if

Espersen is successful on any of her wrongful discharge claims, Espersen’s

damages will be limited to the period during which she constituted an

employee under 24 V.I.C. § 62.” J.A. Vol. 5, 150 (Nov. 21, 2018 Memo. Op.);

Espersen, 2018 WL 6177341, at *20 (emphasis added).

Contrary to the Superior Court’s ruling, sections 77 and 79 of Title 24 do not

merely limit the damages recoverable in a WDA action. Instead, the Legislature

specified that only an “employee” (that is, an individual who meets all of the

criteria in the definition supplied in the Act) may file an action with the

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Department of Labor (24 V.I.C. § 77) or bring an action in court (24 V.I.C. § 79).

This Court should “give effect to [the Legislature’s] express inclusions and

exclusions, not disregard them.” Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 138 S.

Ct. 617, 631 (2018). Had the Legislature intended merely to create a right to bring

an action for compensatory and punitive damages for any individual who claimed

to have been discharged in violation of section 76, it could have so provided.

However, by specifying in sections 77 and 79 that only an “employee” – i.e., an

individual who has “not obtained any other regular and substantially equivalent

employment” – may “file a written complaint” with the Department of Labor or

“bring an action” in court, the Legislature clearly struck a balance between

providing an opportunity for individuals who were unable to secure substantially

equivalent employment to commence an action seeking reinstatement and back

pay, or damages, and disallowing any right of action for the presumably small

group of individuals such as Espersen who were fortunate enough to secure

substantially equivalent employment within a brief window of time, and

accordingly, had no need for administrative or judicial intervention to be restored

economically to a status comparable to the one held at the time of the discharge.

Accord Pedro v. Ranger American of the V.I., Inc., 70 V.I. 251, 279 (Super. Ct.

2019) (explaining that “the discharged employee is no longer considered an

individual who may bring a wrongful discharge claim once they obtain ‘other

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regular and substantially equivalent employment’” (quoting definition of employee

in section 62 of Title 24)).

The Superior Court’s decision to construe section 79 as imposing a

limitation on the available damages improperly rewrote the WDA by providing a

cause of action for individuals who are not “employees” because they have

obtained substantially equivalent employment, and also for other persons who fall

outside Section 62’s definition of employee, such as individuals who were

employed for fewer than six months preceding the discharge. However, the

Superior Court was not free to substitute the phrase “may recover” for “may bring

an action” as the wisdom of the Legislature’s public policy determination is not

one for courts to second guess. See, e.g., Dodd v. United States, 545 U.S. 353, 360

(2005) (explaining that “[a]lthough we recognize the potential for harsh results in

some cases, we are not free to rewrite the statute that Congress has enacted” and

explaining that “[t]he disposition required by the text here, although strict, is not

absurd” and that “[it] is for Congress, not this Court, to amend the statute if it

believes that the interplay of [sections of the law] unduly restricts federal

prisoners’ ability to file second or successive petitions”); Government of the Virgin

Islands v. Servicemaster Co., LLC, No. SX-16-CV-700, 2019 VI LEXIS 122, at

*48-*49 (V.I. Super. Ct. Nov. 27, 2019) (“‘Courts are not authorized to rewrite,

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revise, modify, or amend statutory language in the guise of interpreting it.’”)

(quoting People v. Noel, 68 V.I. 196, 210 (Super. Ct. 2017)).10

B. Alternatively, the Superior Court Erred by Determining that Espersen Could Recover Damages for the Period After She Obtained Substantially Equivalent Employment, and by Denying Sugar Bay’s Motion for New Trial Based Upon the Excessiveness of the Wrongful Discharge Verdict

Furthermore, after disregarding the definition of “employee” supplied by the

Legislature, and ruling that “Espersen’s damages will be limited to the period

during which she constituted an employee under 24 V.I.C. § 62,” the Superior

Court abruptly disregarded the law of the case, stated that its ruling “was not meant

to foreclose non-economic damages after November 30, 2013,” Jan. 25, 2019

Order at J.A. Vol. 5, 351-352 and instructing the jury over Sugar Bay’s objection11

that only a portion of Espersen’s damages – namely, those for “lost wages or back

pay” were limited to the period before she secured “regular or substantially

equivalent employment” but that “damages, if any, for mental anguish, suffering,

10 This Court previously has explained that it must “construe . . . terms based on their common meaning” when no definition is supplied. Defoe v. Phillip, 56 V.I. 109, 123 (V.I. 2012) (discussing the VIWCA which “unlike other chapters in title 24, does not define the term[] ‘employer’ . . . .), aff’d, 702 F.3d 735 (3d Cir. 2012). Conversely, where a definition is supplied, and the Legislature specifies – as it did in section 62 – that the definition shall be utilized “in [a] chapter” of the Virgin Islands Code, a court is not free to disregard that definition and supply a different definition in any section of the chapter that utilizes the defined word. 11 During the instruction conference, counsel for Sugar Bay and AHRA objected that the instructions should “flesh out that compensatory damages are limited to . . . a period of time.” J.A. Vol. 1, 1158-1159 (again arguing that instruction should “define the period [of time]”).

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discomfort, distress, loss of enjoyment of life and embarrassment and humiliation

are not so limited under . . . the wrongful discharge claim.” J.A. Vol. 1, 1414. The

obvious result was to grant Espersen a windfall verdict for purported mental

anguish from the date of her discharge through the date of trial, despite the

uncontested evidence that she secured (better than) substantially equivalent

employment on November 30, 2013, which permitted her to earn well in excess of

her income as a bartender, on top of an hourly rate that exceeded the pay she

earned at Sugar Bay, and maintained employment through the date of trial. J.A.

Vol. 1, 446-450; 46; 486; 700. Section 79 does not distinguish between

compensatory damages for economic loss and compensatory damages for non-

economic loss, and the Court’s instruction that the jury could award compensatory

damages for mental anguish attributable to the discharge without regarding to

timeframe was yet another impermissible re-writing of the WDA, which requires

this Court to vacate the judgment in favor of Espersen,12 and remand for a new

trial. Cf. Pedro, 70 V.I. at 279 (explaining that any damages “are limited to

recompensing injuries sustained during the time period between the employee’s

12 The jury awarded Espersen $189,000 for mental anguish on the wrongful discharge claim. J.A. Vol. 6, 55. Because the Court declined to instruct the jury that Espersen’s claim for non-economic damages was limited to the period between the date of her discharge and the date she obtained substantially equivalent employment, and instead crafted an instruction that expressly contrasted between “limited” economic damages and other “not so limited” (or unlimited) non-economic damages, it would be impossible for this Court to determine that the jury intended for this sum to cover the sixty days when Espersen was unemployed.

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discharge and his obtaining “other regular and substantially equivalent

employment’”).

It was also clear error for the court to allow evidence of Espersen’s

emotional distress caused by litigation. The Court repeatedly overruled Sugar

Bay’s objections to testimony that preparing for trial caused Plaintiff to experience

anguish. J.A. Vol. 1, 451:2-452:14 (Espersen); J.A. Vol. 1, 351:25-J.A. Vol. 1, 353

(Espersen’s mother), J.A. Vol. 1, 688; J.A. Vol. 1, 703-704 (Espersen’s sister).

Jurisdictions addressing this issue have held that, “[a] plaintiff generally cannot

recover damages for emotional distress caused by litigation proceedings.” See

Blakley v. Continental Airlines, Inc., 992 F. Supp. 731, 736 n.3 (D.N.J. 1998).

Sugar Bay requested such an instruction, J.A. Vol. 1, 1169:14-21, and the Superior

Court’s refusal to allow it was error, particularly given its refusal to otherwise limit

Espersen’s non-economic damages to the period before she obtained substantially

equivalent employment

A new trial is also warranted because the award of damages for mental

anguish associated with the wrongful discharge claim was excessive as a matter of

law. Sugar Bay challenged the excessiveness of the verdict, J.A. Vol. 6, 146-148,

but the Superior Court denied the motion for a new trial or for relief from judgment

by failing to address it. Espersen was out of work for approximately eight weeks,

following which she secured more lucrative employment. Under these

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circumstances, the award of an amount for mental anguish that was seventeen (17)

times the lost wages she sustained was excessive as a matter of law, and the

Superior Court at a minimum should have ordered a new trial.

C. At a Minimum, the Punitive Damages Portion of the Wrongful Discharge Award Must Be Vacated.

It is undisputed that, after receipt and review of first-hand reports of events,

Espersen was terminated without fanfare or drama, for violating Sugar Bay’s cash

handling policy. Shortly thereafter, Espersen obtained substantially more lucrative

employment. The conduct at issue —the discharge of an employee in direct

response to information from eyewitnesses identifying what was believed to

represent a policy violation, does not rise to the level of outrageous conduct. Even

if the individuals who made the observations were determined to be mistaken

about their understanding of the events or policies, as Espersen contended, that

would not transform Sugar Bay, as a hotel obligated to ensure that its employees

properly manage money received from guests, into an entity with an “evil motive”

and the decision to discharge Espersen certainly did not display any “reckless or

callous disregard of the rights of Espersen.” J.A. 1, 1416; see also Bertrand v.

Cordiner Enterprises, Inc., No. CV ST-08-CV-457, 2013 WL 6122388, at *9 (V.I.

Super. Nov. 15, 2013). To the contrary, the evidence at trial was that Sugar Bay

involved its human resources consultant in the process, as was the practice at the

time. J.A. 1, 600-601 (explaining that “as a General manager, I would not

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independently make a decision without HR’s consultation or advice or direction, so

I don’t”).

The only support for wrongful discharge punitive damages were counsel’s

inflammatory remarks. For example, and as noted above, Espersen’s counsel

intentionally misstated facts at trial by arguing that Sugar Bay’s human resources

consultant told Espersen, “I'm sorry, you're terminated, you can't come back, we

find you're a thief.” J.A. 1, 279:4 (emphasis added).

The sole purpose of these inaccurate, unfairly prejudicial statements was to

misdirect the jury from the evidence, to elicit an emotional response and to

inflame. In Creative Minds, LLC v. Reef Broadcasting, the Superior Court ruled

that a new trial would be warranted if it finds that the verdict could not have been

reached by a rational jury “without being inflamed by passion or prejudice or other

improper consideration.” No. ST-11-CV-131, 2014 WL 4908588 at *11 (V.I.

Super. Ct. Sept. 24, 2014). In this trial, the end result of the passion and prejudice

flamed by counsel’s misstatements was a runaway verdict that shocked the

conscience: the jury awarded Espersen – who obtained more lucrative employment

within two months of her separation from Sugar Bay and who remained employed

through the date of trial at a higher paying job –an astounding $1.6 million in

punitive damages on the wrongful discharge claim (including $360,000 allocated

to Sugar Bay), an amount that clearly excessive, and in violation of any

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constitutionally permissible ratio to the compensatory damages.13 Even if the

Wrongful Discharge Act was properly construed to allow an individual who did

not qualify as an employee within the meaning of the Act to bring a claim, the

court’s failure to limit the compensatory damages award to the brief period of

Espersen’s unemployment necessarily impacted the punitive damages award,

which also must be vacated.

Finally, and as a matter of constitutional law, the punitive damages award

must be set aside because combined punitive damages award of $900,000 exceeds

any permissible constitutionally-sanctioned ratio, given the already substantial

compensatory damages award of $641,103. Espersen lost wages of $11,103 for the

termination and alleged, accompanying defamation, and so the compensatory

damages awards indisputably contained a significant punitive element. Under

these circumstances, courts have recognized that a 1:1 ratio is at the outer limits of

the due process guarantee. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 514-15

(2008); Jones v. United Parcel Service, Inc., 674 F.3d 1187, 1207-08 (10th Cir.

2012).

III. EVIDENTIARY RULINGS

13 Sugar Bay addressed the excessiveness of the award, and the resulting violation of its due process and constitutional rights in its Motion for New Trial. J.A. Vol. 6, 148-155. Sugar Bay further adopts and incorporates by reference as if fully set forth herein the arguments in the opening brief of Aimbridge concerning the punitive damages award on the wrongful discharge claim.

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A. The Court Improperly Admitted a Portion of Sugar Bay’s Webpage

The Court allowed Espersen’s counsel to publish Sugar Bay’s website to the

jury during the punitive damages trial. The purpose was to demonstrate that

despite two category five hurricanes in 2017, Sugar Bay remained a thriving

establishment that could pay an enormous punitive verdict. Sugar Bay objected to

the Plaintiff’s counsel’s publication, inter alia, because the website was not an

accurate representation of Sugar Bay’s post hurricane operations and because

counsel did not show the disclaimer at the bottom of the website which read:

ROOMS AVAILABLE FOR INDIVIDUALS, COMPANIES INVOLVED IN CONSTRUCTION, RELIEF, RECOVERY, ASSESSMENT AND OTHER BUSINESS RELATED: Due to damages sustained by two category 5 hurricanes, Irma and Maria, in September 2017, the Sugar Bay Resort and Spa will be closed most of 2018 & 2019. At this time we are not able to determine our re-opening date. Sugar Bay does have a small block of rooms with limited services available for Recovery Personnel only (conditions apply). NO CHILDREN ARE ALLOWED.

Available at https://www.sugarbayresortandspa.com. Additionally, the printed

version of the website provided by Espersen’s counsel did not properly represent

all of the information on the website, including banners and disclaimers. J.A. Vol.

2, 232. Generally, the admission of unauthenticated printouts of website pages is

clearly erroneous reversible error calling for a mistrial. O'Connor v. Newport

Hosp., 111 A.3d 317, 324–25 (R.I. 2015). And in this trial, the publication of the

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website material without authentication or the important disclosure indicating that

Sugar Bay had only limited operations was highly prejudicial to Sugar Bay. This

too, was a basis for the grossly excessive punitive damages award and necessitates

a new trial.

B. The Court Improperly Admitted the Department of Labor CD

In the January 25, 2019 Order, the Court ruled that Espersen’s December 3,

2013 Department of Labor (DOL) Determination was inadmissible because it was

not Sugar Bay’s speech, but conditioned the ruling on a stipulation that Espersen

was terminated for misconduct. J.A. Vol. 5, 348-349. Sugar Bay so stipulated in a

February 5, 2018 filing and at trial, and the stipulation was read to the jury. J.A.

Vol. 1, 301-309; J.A. Vol. 1, 322. Undeterred, Espersen’s counsel attempted to

have a recording of the entire DOL proceeding admitted. The Court ruled that

“I've indicated in a prior ruling that if they stipulate that she was discharged for

misconduct, that those records doesn't come in. Those records are filled with

hearsay.” J.A. Vol. 1, 305-306. After hearing argument on this issue, id., 304-308,

the court held that Espersen could use the recording for impeachment but that she

could not use it as part of her case in chief. Id., 309.

During her cross examination of Carrie Combs (who testified before the

Department of Labor), Espersen’s counsel tried yet again to have the CD (also

referred to as “tapes”) admitted for impeachment purposes. J.A. Vol. 1, 1074-

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1077. Indeed, Espersen’s counsel went so far as to ask Combs to confirm that she

had testified under oath before the DOL, and when Combs confirmed that she had

done so, Espersen’s counsel asked whether it was true that Combs had testified that

Espersen “was terminated because she took money from a guest for a drink and she

didn’t turn it in and kept it for herself.” Id., 1074:11-15. Although the court

properly sustained an objection to that question, Espersen’s counsel announced that

she was going to play the recorded testimony before the court could call a sidebar

conference. Id., 1074-1075. During the sidebar, the court listened to the recording,

concluded that it did not hear the statement Espersen’s counsel proclaimed had

been made, listened a second time, and again concluded, “I haven’t found any

inconsistency.” Id., 1078-1079.

To Sugar Bay’s dismay, the Exhibit List indicates that the Department of

Labor CD marked as Plaintiff’s Exhibit 90 was both identified and admitted into

evidence. See J.A. Vol. 2, 269. The excessive jury verdict on the defamation

claim cannot be extricated the unfairly prejudicial effect of the admission of the

CD, which likely was deemed to be additional evidence of culpability merely

because of the improperly suggestive statements of counsel. As a result, this error

necessitates a new trial. Cf., e.g., Sayih v. Perlmutter, 561 So.2d 309, 312 (Fla.

App. 1990) (reversing and remanding for a new trial and explaining that “[i]t is

generally reversible error to deliver to the jury room any materials which have not

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been admitted into evidence where the materials are of such character as to

influence the jury”); cf. also United States v. Adams, 385 F.2d 548, 550-51 (2d Cir.

1967) (ordering a new trial and explaining that “the principle that the jury may

consider only matter that has been received in evidence is so fundamental that a

breach of it should not be condoned if there is the slightest possibility that harm

could have resulted”).

CONCLUSION

For the reasons stated herein, Sugar Bay requests that this Court reverse or

order a new trial.

Date: June 14, 2020 Respectfully submitted,

Semaj I Johnson, Esq. V.I. Bar No. 1151 Kevin A. Rames, Esq. V.I. Bar Number 193 Law Offices of K.A. Rames, P.C. 2111 Company Street, Suite 3 Christiansted, VI 00820 Telephone: (340) 773-7284 Facsimile: (340) 773-7282 [email protected] [email protected]

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CERTIFICATE OF COMPLIANCE WITH RULE 22(f)

THIS IS TO CERTIFY that this brief is in compliance with this Court word

limitations pursuant to V.I. R. App. P. 22(f), Appellant’s May 25, 2020 Motion for

additional pages and this Court’s June 11, 2020 Order granting the same. The

word count of the instant brief, as defined by Rule 22(f) and confirmed by the

undersigned’s Microsoft Word 10.1 Word Processing Program is 10,007 words in

the body and 582 words in the footnotes, for a total of 10,589 words typed in 14

Times Roman Font.

Semaj I Johnson, Esq.

06/15/2020

CERTIFICATE OF COMPLIANCE WITH RULE 22(l)

THIS IS TO CERTIFY that, in compliance with V.I. S. CT. R. 22(l), the

undersigned attorney of record for Appellant is a member of the bar of this Court.

Semaj I Johnson, Esq.

06/15/2020

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that, in compliance with V.I. S. CT. R. 15(c),

as amended by this honorable Court’s April 23, 2020 In Re: Coronavirus

Disease 2019 Administrative Order, S.Ct. ADM.No. 2020-0008 and its May

28, 2020, In re: Transition to Resumption of Certain Judicial Branch

Operations, ADMIN ORDER No. 2020-0010, on this 14th day of June

2020, I caused copies of the foregoing BRIEF OF APPELLANT to be

served upon counsel of record, as follows:

BY ECF DISTRIBUTION & ELECTRONIC MAIL

Rhea Lawrence, Esq. & Lee J. Rohn, Esq., of Lee J. Rohn & Associates, LLC, counsel for Appellee/Plaintiff/Cross-Appellant, Carolyn Espersen, at 1131 King Street, Christiansted, St. Croix, U.S. Virgin Islands 00804 [email protected] [email protected] Lisa Komives, Esq. of Dudley, Newman Feuerzeig, LLP, counsel for co-Defendant/co-Appellant/Cross-Appellee Aimbridge Hospitality, LP, at P.O. Box 756 St. Thomas, USVI 00804 [email protected]

06/15/2020

Semaj I. Johnson, Esq.

06/15/2020