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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 1 3 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 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 Plaintiffto Defendant, demanding payment for outstanding balance in the total amount of$44,] l4 12 for labor/expenses, as ofMay 6, 2020, with a copy ofa summary ofinvoices 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 Plaintiffan 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 ofDefense 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 defaultjudgment An entry ofdefault does not necessitate a defaultjudgment 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 ” 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 defaultjudgment in the Superior Court, Federal Rule of Civil Procedure 55(b) similarly provides that defaultjudgment 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 ofthe 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 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) Plaintiffmade the following allegation in support of its argument (i) “As ofJuly 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 ofthat duty, and (4) damages 66 V I 612 621 (V I 2017) (citing Brouillard v DLJ Mortgage Capital Inc 63 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 ofmutual assent or a meeting ofthe 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) 1 7 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 of2017 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 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 ofmonthly 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 postjudgment 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, Plaintiffrendered legal services as agreed upon (hereinafier “Agreement”), Defendant to pay Plaintiff, and Plaintiff sustained damages as a result ofDefendant’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 Plaintiffs motion for defaultjudgment 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 Plaintiffunder 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 ofdamages 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, 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 Plaintiffand 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 ofprejudgment 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 filings, not paid within thirty (30) days from the date ofthe 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 defaultjudgment 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 ofoutstanding 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 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 filings, not paid within thirty (30) days from the date ofthe statement until the date ofthe 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 ofPlaintlft’s supplemental filings, commencing on the date ofthe entry ofthe Judgment until the date the Judgment is satisfied And it is further ORDERED that Plaintiff’s motion for default judgment as to the issue ofcosts 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 ofM3 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?