Kellerhals Ferguson Kronblin PLLC v. Omar R. Cintron a/k/a Omar Cintron Nieves

• Court: Superior Court of The Virgin Islands
• Decided: August 2, 2021
• Docket: SX-20-CV-559
• Status: Unpublished

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX KELLERHALS FERGUSON KROBLIN PLLC Civil No SX 2020 CV 559 PL“"'" ACTION FOR BREACH v OF CONTRACT OMARR CINTRON A/K/A OMARR CITE AS 2021 VI SUPER 8 2W CINTRON NIEVES, DEFENDANTS

Appearances Shari N D’Andrade, Esq Christopher Allen Kroblin, Esq Kellerhals Ferguson Kroblin PLLC St Thomas, U S Virgin Islands For Plamtzfl

MEMORANDUM OPINION AND ORDER

‘1 1 THIS MATTER came before the Court on Plaintiff Kellerhals Ferguson Kroblin PLLC s

(hereinafter “Plaintiff” or “KFK”) motion for default judgment, filed on July 12, 2021

BACKGROUND

'2 On May 20, 2020, Plaintiff filed a complaint against Defendant Omar R Cintron a/k/a

Omar R Cintron Nieves (hereinafter “Defendant” or “Cintron”) for breach of contract

Subsequently, per the Court’s permission, Defendant was served via publication When Defendant

failed to plead or otherwise defend, default was entered against Defendant on April 28, 2021

13 On July 12, 2021, Plaintiff filed this instant motion for default judgment The followmg

documents were attached to Plaintiff‘s motion (i) a copy of the proposed default judgment and

(ii) a copy of declaration of Christopher Allen Kroblin, Esq , dated July 12, 2021 (hereinafter

“Kroblin Declaration”), whereby Attorney Kroblin declared that, as of July 12, 2021, Defendant

owes Plaintiff an outstanding balance in the total amount of $57 653 58 ($41 727 43 in Kellerhals Ferguson Kroblin PLLC v Cintron

fiigiglfilznfigpinion and Order 2021 v1 SUPER 321A Page 2 of l l

labor/expenses plus $15,926 15 in interest), with interest continuing to accrue at a rate of $10 28

per diem A copy of the following exhibits were attached to the Kroblin Declaration (i) a copy of

the letter, dated August 1, 2014, from Plaintiff to Defendant, setting forth the terms of their

agreement, signed by Defendant on August 19, 2014 (Exhibit A), (ii) a copy of the letter, dated

May 5, 2020, from Plaintiff to Defendant, demanding payment for outstanding balance in the total

amount of $44,] l4 12 for labor/expenses, as of May 6, 2020, with a copy of a summary of invoices

for the period August 31 2014 through August 13 2019 attached (Exhibit B) (iii) a copy of the

notice of filing proof of service by publication, filed on April 8, 2021 (Exhibit C), (iv) a copy of

the entry of default order, entered on April 28, 2021 (Exhibit D), (v) a copy of the status report

pursuant to Servicemembers Civil Relief Act for Omar Cintron (Exhibit E), and (vi) a copy of a

summary of invoices for the period September 9, 2014 through July 1, 2021, showing that

Defendant owes Plaintiff an outstanding balance in the total amount of $57 653 58 ($41,727 43 in

labor/expenses plus $15,926 15 in interest) (Exhibit F) According to Plaintiff‘s motion, “Cintron

is not an infant, incompetent person, or in the military service” and the “Status Report provided by

the Department of Defense pursuant to the Servicemembers Civil ReliefAct confirms that Cintron

is not in the military service ” (Motion, pp 8 9, Kroblin Dec] 1H] 20 22)

STANDARD OF REVIEW

1| 4 Rule 55 of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 55”) governs

entry for default and default judgment An entry of default does not necessitate a default judgment

See Chaput v Scafidt 66 V I 160 188 (Super Ct June 14 2017)( Plaintiffs do not win by default

just because the defendants fail to appear ”) “[W]hen default is entered against a defendant, the

defendant is admitting only to the allegations against him as alleged in the charging document ”

Redemption Holdzngs Inc v Gov tofthe VI 65 V I 243 255 (V I 2016) (citing ngv Appleton Kellerhals Ferguson Kroblm PLLC v Cmtron SX 2020 CV 559 Memorandum Opinion and Order 2021 VI SUPER 39‘“ Page 3 of II

61 V I 339 346 (V I 2014)) In ng the Virgin Islands Supreme Court pointed out that the

Superior Court must consider whether the unchallenged facts constitute a legitimate cause of

action, since a party in default does not admit mere conclusion of law” and that if the Superior

Court determines that the unchallenged facts constitute a legitimate cause of action, then it is “to

hold a default judgment hearing to establish the amount of damages ” 61 V I at 346 (internal

quotes and citations omitted) (footnote omitted) However, a default judgment can be entered

without a hearing “[w]hen the plaintiff‘s claim against a defendant is for a sum certain or for a sum

which can by computation be made certain ” Appleton v Harrzgan, 61 V I 262, 270 (V I 2014)

(citing Super Ct R 48(a)(1)),I see V I R Cw P 55(b)(1) (“If the plaintiff‘s claim is for a sum

certain or a sum that can be made certain by computation, the court or the clerk on the plaintiff‘s

request, with an affidavit showing the amount due must enter judgment for that amount and

costs against a defendant who has been defaulted for not appearing and who is neither a minor nor

an incompetent person ”) In Harrzgan, the Virgin Islands Supreme Court explained that “[a] claim

is not a sum certain unless there is no doubt as to the amount to which a plaintiff is entitled as a

result of the defendant's default ” 61 V I at 270 “In all other cases [not involving a claim for a

' The Hamgan court noted “We again look to federal case law for persuasive authority because, even though Superior Court Rule 48 exclusively governs default judgment in the Superior Court, Federal Rule of Civil Procedure 55(b) similarly provides that default judgment can be entered without a hearing only where the damages sought are a “sum certain ” SUPER CT R 48(a)(1) (“When the plaintiff‘s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff shall enter judgment for the net amount due and costs against the defendant ) FED R Clv P 55(b)(l) (“Ifthe plaintiff‘s claim is for a sum certain or a sum that can be made certain by computation, the clerk must enterjudgment for that amount and costs against a defendant ”) ”) 6] VI at 270 n 9 Since Harrtgan, the Virgin Islands Supreme Court adopted the Virgin Islands Rules of Civil Procedure, which went into effect on March 3 I , 2017 Subsequently, Superior Court Rule 48 was repealed on April 7, 2017 by Supreme Court Promulgation Order No 2017 0006 While Superior Court Rule 48 has been repealed and the Federal Rules of Civil Procedure does not apply in this matter, the Court nevertheless finds the Hamgan court's analysis as to sum certain claims helpful here since Rule 55(b)(l) closely mirrors its federal counterpart and Superior Court Rule 48 Kellerhals Ferguson Kroblm PLLC v Cintron

litigtgigncclxnfgpinion and Order 2021 v1 SUPER 394A Page 4 of l 1

sum certain], the party must apply to the court for a default The court may conduct hearings or

make referrals preserving any statutory right to a jury trial when, to enter or effectuate

judgment, it needs to (A) conduct an accounting, (B) determine the amount of damages,

(C) establish the truth of any allegatlon by evidence, or (D) investigate any other matter ” V I R

CIv P 55(b)(2)

DISCUSSION

1| 5 In his motion, Plaintiff argued that the Court “should enter default judgment in this case

and an award if attomeys’ fees and costs incurred in litigating this matter ” (Motion, p 10)

Plaintiff made the following allegation in support of its argument (i) “As of July 12, 2021 Cintron

owe KFK $41 727 43 plus interest in the amount of $15,926 15 , which continues to accrue

at a rate of $10 28 per diem, plus attorneys’ fees and costs ” (Id , at p 2), (ii) Plaintiff “has

established a cause of action for breach of contract against Cintron” to wit, “the parties had a

valid contract that imposed a duty on Cintron to timely pay KFK’s fees,” [d]espite Cintron’s

obligation and KFK’s demands, Cintron failed to pay KFK’s fees as agreed,” and “[c]onsequently,

KFK has suffered and continues to suffer damages ” (Id , at p 7), and (iii) Plaintiff is entitled to

attomeys’ fees and costs under Title 5 V I C § 541

I Whether Plaintiff is Entitled to a Judgment by Default

1| 6 In its complaint, Plaintiff alleged the following cause of action against Defendant breach

of contract In Phillip v Marsh Monsanto, the Virgin Islands Supreme Court conducted a Banks

analysis and determined that to estabhsh a breach of contract claim, the plaintiff “was required to

demonstrate (1) an agreement, (2) a duty created by that agreement, (3) a breach of that duty, and

(4) damages 66 V I 612 621 (V I 2017) (citing Brouillard v DLJ Mortgage Capital Inc 63

VI 788 798 (V I 2015) (citing Arlmgton Fundmg Servs Inc v Gezgel 51 VI 118 135 (V I Kellerhals Fergw'on Kroblm PLLC v Cmtron SX 2020 CV 559 Memorandum Opinion and Order 2021 VI SUPER m Page 5 of I I

2009)) “A contract may be ‘express, implied in fact, or implied in law ’” Turnbull v Turnbull,

71 VI 96 105 (Super Ct July15 2019) (citing Peppertree Terrace v Williams 52VI 225 241

(V I 2009) (Swan, concurring» “An express contract is memorialized ‘in oral or written words,’

and an implied in fact contract is ‘inferred wholly or partially by conduct ’” Id (citing Peppertree

Terrace, 52 V I at 241) (Swan, concurring»; see also Whyte v Bockmo, 69 V I 749, 764 (V I

2018) (citing Peppertree Terrace, 52 VI at 241) (Swan, concurring» An enforceable contract

requires “an offer, acceptance, a bargained for legal benefit or detriment, commonly known as

consideration, and a manifestation of mutual assent ” Williams v Umv of the VI , 2019 VI

LEXIS 2 *4 (Super Ct Jan 18 2019) (citing Peppertree Terrace 52 VI at 241) (Swan

concun'ing)), see also, Cornelius v Bank of Nova Scotza, 67 V I 806, 820 (V I 2017)

(“[A] contract is only formed or modified to the extent there is mutual assent and mutual

consideration ”) “A manifestation of mutual assent or a meeting of the minds requires that the two

parties that intend to form a contract are in agreement to the same terms and must be proven

objectively Umv ofthe VJ 2019 VI LEXIS 2 at *4 Smith v McLaughlin 2019 VI LEXIS

180 *7 (Super Ct Oct 22 2019)

17 The Court will first determine whether the unchallenged facts, as alleged in Plaintiff’s

complaint, constitute a legitimate cause of action Plaintiff made the following allegations in its

complaint

5 On August 1, 2014, Cintron engaged the legal services of KFK for the purpose of representing Defendant in a business dispute 6 KFK represented Cintron beginning in August 2014 and continued to represent Defendant through the middle of 2017 7 Pursuant to the parties’ written agreement (the “Agreement”), Cintron agreed to promptly pay KFK’s fees in accordance with the terms of the Agreement 8 The Agreement timber provides that statements for services rendered and expenditures made by KFK would be sent to Cintron each month, and that the amounts set forth in the statements are due within thirty (30) days after the date the statement is mailed Kellerhals Ferguson Kroblm PLLC v Cmtron sx 2020 cv 559 Memorandum Opinion and Order 2021 VI SUPER &V\ Page 6 of l l

9 KFK is entitled to costs including attorneys’ fees, for collection of its fees, and interest at a rate of nine percent (9%) per annum on all outstanding amounts not paid within thirty (30) days of the statement date pursuant to the Agreement 10 The Agreement is expressly governed by the law of the U S Virgin Islands, and the parties agreed to submit to the exclusive jurisdiction ofthe courts ofthe U S Virgin Islands with respect to any issue arising out of the Agreement 11 Despite KFK’s submission of monthly invoices and demands, Cintron has defaulted on his obligations under the Agreement by failing to submit payment 12 On May 7 2020 KFK sent Cmtron a demand letter, requesting full payment of past due invoices by May 18, 2020 13 Despite KFK’s demand, to date, Cintron has not submitted any payment whatsoever

COUNT I BREACH OF CONTRACT 14 Plaintiff restates and re alleges the foregoing paragraphs as if fully set forth herein 15 KFK and Cintron are parties to an enforceable contract 16 KFK hilly performed under the parties’ contract by providing Cintron with legal professional services 17 Under the parties’ Agreement, Cintron was required to pay KFK’s fees and expenses for services rendered 18 Cintron expressly breached his obligations under the Agreement by failing to pay for the legal services rendered 19 As a direct and proximate cause of Cintron‘s actions, KFK suffered, and continues to suffer, damages, including incidental and consequential damages

WHEREFORE KFK respectfully prays for the following a Judgment declaring that Cintron is in default under the terms ofthe Agreement and KFK is entitled to exercise all rights under the Agreement, b Judgment declaring the amount of outstanding fees due under the Agreement including interest at the legal rate on such fees from the due date thereof, together with all expenses, including attorneys’ fees and costs, 0 Judgement awarding KFK all pre and post judgment interest to which it is entitled, and d Judgment awarding KFK such additional and flirther relief as this Court deems just and equitable

(Compl )

1| 8 Based on the unchallenged facts, the Court finds that Defendant and Plaintiff entered into

an agreement on August 1, 2014, whereby Plaintiffagreed to render legal services to Defendant at

agreed upon rates and Defendant agreed to pay Plaintiff for the services rendered at the agreed

upon rates, Plaintiff rendered legal services as agreed upon (hereinafier “Agreement”), Defendant

had a duty to pay Plaintiff for the services rendered, Defendant breached its duty when he failed Kellerhals Ferguson Kroblin PLLC v Cmtron 8X 2020 CV 559 Memorandum Opinion and Order 2021 VI SUPER RAM Page 7 of 11

to pay Plaintiff, and Plaintiff sustained damages as a result of Defendant’s breach Thus, the Court

concludes that the unchallenged facts constitute a legitimate cause of action for breach of contract

under Virgin Islands law Accordingly, the Court will grant Plaintiff s motion for default judgment

as to the issue of liability

11 9 The Court will next determine whether a hearing is necessary to establish the amount of

damages Based on the Kroblin Declaration and the exhibits attached thereto, there is a discrepancy

as to the outstanding balance owed by Defendant in labor/expenses—to wit, according to the

Kroblin Declaration and Exhibit F as of July 12 2021 Defendant owes Plaintiff $41 727 43 m

labor/expenses, but according to Exhibit B, as of May 6, 2020, Defendant owes Plaintiff

$44,114 12 in labor/expenses 2 Furthermore, Plaintiff failed to provide any evidence showing that

Defendant was charged according to the agreed upon rates for the services rendered The invoices

provided by Plaintiff Exhibit B and Exhibit F were only a summary of invoices and did not

include the legal rates charged Based on the foregoing, the Court cannot determine whether

Plaintiff‘s claim for the total amount Defendant owes Plaintiff under the Agreement qualifies as a

sum certain See Hamgan, 61 V I at 270 (“[a] claim is not a sum certain unless there is no doubt

as to the amount to which [Plaintiff] is entitled as a result of [Defendant’s] default ”) Thus the

Court cannot conclude whether a hearing is necessary to establish the amount of damages in this

matter At this time, the Court will give Plaintiff an opportunity to file supplemental filings to

remedy the deficiencies and reserve ruling on Plaintiff’s motion for default judgment as to the

issue of damages

2 The discrepancy may be due to (i) Exhibit B indicated that Invoice #313 17 was paid in full in the amount of $1796 49 and that Invoice #31629 is partially paid in the amount of $703 51, but Exhibit F did not indicate such payments in the calculation, (ii) Exhibit B included the following invoices which were not included in Exhibit F Invoice #45098, Invoice #45385, Invoice #46085, Invoice #47747, and Invoice #48650, and/or (iii) Exhibit F included the following invoices which were not included in Exhibit B Invoice #55173 and Invoice #55172 Kellerhals Ferguson Kroblin PLLC v Cmtron

fififiignithsgpinion and Order 2021 VI SUPER XQJA Page 8 of 11

11 Whether Plaintiff is Entitled to Pre judgment Interest and Post judgment Interest

11 10 Plaintiff requested pre judgement interest and post judgment interest as part of the relief

in its complaint and Its motion for default judgment

A Pre-judgment Interest

1| 1] Plaintiff argued in its motion for default judgment that (i) it is entitled to “interest at the

rate of nine percent (9%) per annum on all outstanding amounts not paid within thirty (30) days

afier the statement is mailed pursuant to the Agreement,” (ii) Defendant owes Plaintiff interest in

the amount of $15,926 15, and (iii) that interest continues to accrue at a rate of $10 28 per diem

(Motion, p 2)

1| 12 The Agreement prov1ded, in relevant part “You understand and agree that the Firm3

reserves the right to include interest at the rate of nine percent (9%) per annum on all outstanding

amounts not paid within thirty (30) days from the date of the statement ” (Exhibit A ) Given that

this is a term that Plaintiff and Defendant had agreed to in their Agreement, the Court finds that an

award of pre judgment interest on all outstanding amounts not paid Within thirty (30) days from

the date of the statement is apprOpriate here See Wllllams v Edwards, 2017 VI LEXIS 105 at

*6 (Super Ct July 12 2017) (quoting Isaac v Crichlow 63 V I 38 69 (Super Ct Feb 10 2015)

(“The grant or denial of prejudgment interest remains within the sound discretion of the trial

court ”) Accordingly, the Court will grant Plaintiff’s motion for default judgment as to the issue

of pre judgment interest Pre judgment interest will be calculated at the rate of 9% per annum on

the outstanding amount, as determined by the Court pending receipt of Plaintiffs supplemental

3 In the Agreement, the “Finn” is defined as Kellerhals Ferguson Kxoblin PLLC Kellerhals Ferguson KrobIm PLLC v Cmtron SX 2020 CV 559 Memorandum Opinion and Order 2021 VI SUPER _8a_\/\ Page 9 of II

filings, not paid within thirty (30) days from the date of the statement until the date ofthe entry of

the judgment in this matter (hereinafter “Judgment”) 4

B Post judgment Interest

1| 13 Title 5 V I C § 426 governs the application of post judgment interest Title 5 V I C §

426(a) states that “[t]he rate of interest on judgments and decrees for the payment of money shall

be 4 percent per annum ” Title 5 V I C §426(a) In Christian v Joseph, the mud Circuit, while

sitting as the de facto court of last resort for the Virgin Islands, held that Title 5 V I C § 426

“provides for automatic accrual of post judgment interest ”5 29 V I 404, 408 (3d Cir 1993)

Accordingly, the Court will grant Plaintiff’s motion for default judgment as to the issue of post

judgment interest Post judgment interest will accrue at the rate of 4% per annum on the

outstanding amount, as determined by the Court pending receipt ofPlaintiffs supplemental filings,

commencing on the date of the entry of the Judgment until the date the Judgment is satisfied

III Whether Plaintiff is Entitled to Costs

1| 14 Although Plaintiff did not file a separate motion for costs and fees, Plaintifi’s motion for

default judgment requested costs and fees pursuant to Title 5 V I C § 541 as part of the relief

However, Plaintiff failed to provide any evidence supporting its request for costs and fees At this

time, the Court will deny without prejudice Plaintiff’s motion for default judgment as to the issue

‘ As noted above, there is a discrepancy as to the outstanding balance owed by Defendant in labor/expenses Thus, the Court will not rely on the amount of outstanding interest ($15,926 15) or the per diem rate ($l0 28 per diem) provided in Plaintiff's motion 5 The Third Circuit’s decision construing a Virgin Islands statute in Christian is binding on the Superior Court See NGJUWICZ v People ofthe V I , 58 V l 315, 328 (2013) (“In fact, every other Third Circuit decision which we have characterized as being binding on the Superior Court can be traced to a case where the Third Circuit had exercised its power as the final arbiter of Virgin Islands local law ”), see also Government ofthe Virgm Islands v Connor, 60 V I 597, 606 n l (V I 2014) (citation omitted) (“Superior Court should treat decisions of the United States Court of Appeals for the Third Circuit as binding precedent with respect to issues of local law ”) Kellerhals Ferguson Kroblm PLLC v Cmrron

hié‘ii‘ifilisépinionandorder Page [0 of I I 2021 v1 summ of costs and fees and order Plaintiff to file a separate motion with proper briefing and supporting

documents if it wishes to move the Court for costs and fees

CONCLUSION

WI 15 Based on the foregoing the Court will grant Plaintiff’s motion for default judgment as to

the issue of liability grant Plaintiff leave to file supplemental filings to remedy the deficiencies

noted above reserve ruling on Plaintiff’s motion for default judgment as to the issue of damages

pending receipt of Plaintiff s supplemental filings grant Plaintiff’s motion for default judgment as

to the issue of pre judgment interest and post judgment interest deny without prejudice Plaintiff’s

motion for default judgment as to the issue of costs and fees, and reserve entering Judgment until

the Court has ruled on the issue of damages Accordingly it is hereby

ORDERED that Plaintiff’s motion for default judgment as to the issue of liability for

Plaintiff‘s breach of contract claim is GRANTED It is further

ORDERED that within thirty (30) days from the date of entry of this Memorandum

Opinion and Order, Plaintiff shall remedy the deficiencies noted above by supplementing its

motion for default judgment with (i) evidence showing the total amount Defendant owes Plaintiff

under the Agreement and (ii) evidence showing that Defendant was charged according to the

agreed upon rates for the services rendered and/or affidavit stating such The Court will reserve

ruling on Plaintiff’s motion for default judgment as to the issue of damages pending receipt of

Plaintiff’s supplemental filings It is further

ORDERED that Plaintiff’s motion for default judgment as to the issue of pre judgment

interest is GRANTED Pre judgment interest shall be calculated at the rate of 9% per annum on

the outstanding amount as determined by the Court pending receipt of Plaintiff’s supplemental Kellerhals Ferguson Kroblin PLLC v Cmtron SX 2020 CV 559 Memorandum Opinion and Order 2021 VI SUPER 8;“ Page II of II

filings, not paid within thirty (30) days from the date ofthe statement until the date of the entry of

the Judgment It is further

ORDERED that Plaintiff’s motion for default judgment as to the issue of post judgment

interest is GRANTED Post judgment interest shall accrue at the rate of 4% per annum on the

outstanding amount, as determined by the Court pending receipt of Plaintlft’ s supplemental filings,

commencing on the date of the entry of the Judgment until the date the Judgment is satisfied And

it is further

ORDERED that Plaintiff’s motion for default judgment as to the issue of costs and fees is

DENIED WITHOUT PREJUDICE Plaintiff shall file a separate motion with proper briefing

and supporting documents, if it wishes to move the Court for costs and fees

DONE and so ORDERED this 9"“ day of M3 2021

I \ ATTEST / >¢ Tamara Charles HAROLD W L WILLOCKS Clerk of the o Presiding Judge of the Superior Court

By curt Cle Sapervasorfi Dated fly?