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?