IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
******‘k*******
GO FAST CHARTERS LLC, )
)CASE NO ST 2010 CV 00672
Plaintiff, )
)ACTION FOR BREACH OF
vs )CONTRACT NEGLIGENCE
)TRESSPASS NUISANCE
TEXACO CARIBBEAN INC )
)JURY TRIAL DEMANDED
Defendant )
Cite as 2024 VI Super 26U
MEMORANDUM OPINION
111 THIS MATTER is before the Court on
1 Plaintiff Go Fast Charters, LLC 8 Motion to Strike Kellerhals Ferguson Kroblin
PLLC s Assetted Attomey’s Lien, filed December 4, 2018;
2 Kellerhals Ferguson Kroblin PLLC 3 Reply to Opposition to Motion for Summary
Judgment on Attorney 8 Lien & Opposition to Motion to Strike Attomey’s Lien, filed
December 28 2018
3 Plaintiff Go Fast Charters, LLC’s Supplement Submission in Support of Plaintiff’s
Motion to Strike Kellerhals Ferguson Kroblin PLLC’s Asserted Attomey’s Lien,
accepted by Order issued January 29, 2024,
4 Plaintiff Go Fast Charters, LLC’S Post Hearing Proposed Findings Of Fact And
Conclusions Of Law filed June 17, 2024;
5 Plaintiff Go Fast Charters LLC s Post Hearing Brief In Support Of Plaintiff’s
Motion To Strike Kellerhals Ferguson Kroblin PLLC’S Asserted Attorney 5 Lien,
filed June 17 2024
6 Kellerhals Ferguson Kroblin PLLC’s Findings Of Fact & Conclusions Of Law, filed
June 20 2024' and
7 Kellerhals Ferguson Kroblin PLLC’s Post Hearing Closing Argument And Brief,
filed June 20 2024
1|2 The Court finds that the contingency fee agreed to between the parties in this matter was
dependent on damages being awarded at a jury trial As there was no damages award, the charging
Go Fast Charters. LLC v Texaco Caribbean. Inc 2024 V1 Super 2611
Case No ST 20l0 CV 00672
Memorandum Opinion
Page 2 of 6
lien is no longer valid and Plaintiff Go Fast Charters, LLC’s Motion to Strike Kellerhals Ferguson
Kroblin PLLC s Asserted Attomey’s Lien, filed December 4, 2018, will be granted
I INTRODUCTION
fi|3 On November 29, 2010, Plaintiff Go Fast Charters LLC (‘ Go Fast ) filed suit against
Defendant Texaco Caribbean, Inc (‘ Texaco”) on account of oil gasoline leakages from storage
distribution, and pumping equipment operated by Texaco at a marina run by Go Fast Go Fast and
Texaco eventually reached a settlement, and on July 10, 2017, the parties filed a Joint Stipulation
and Motion To Dismiss, which was granted by this Court 3 Order on July 1 l, 2017 On April 19,
2018, Go Fast filed a motion to reopen the case for the limited purpose of adjudicating an attorney 3
lien, which was asserted on the settlement proceeds by Go Fast’s former counsel, Kellerhals
Ferguson Kroblin PLLC( KFK )on July 16 2014
1|4 On May 16, 2018, the case was reopened for the purpose of clarifying the attorney’s lien
placed by KP K On September 19, 2022, the Court ordered the parties to provide briefs analyzing
the common law right of an attomey’s lien under the Banks analysis framework ' On October 24,
2022, both KFK and Go Fast filed briefs analyzing the common law right to an attorney 3 lien On
October I 1, 2023 this Court issued a Memorandum Opinion, 2023 VI Super 58, establishing the
common law right to an attomey’s lien in the U S Virgin Islands An evidentiary hearing was
scheduled for, and subsequently held on, January 18, 2024, to resolve whether KFK was entitled
to an attomey’s lien The parties then submitted their post hearing briefings on June 17, 2024
II F[NDINGS OF FACT
{[5 The Court makes the following Findings of Fact following the evidentiary hearing and
upon review of the post hearing briefing
1 Go Fast hired KFK in November 2012 to represent it in litigation pending at the
Superior Court (the “Go Fast case ’) The Go Fast case concerned leaking and spillage
0f oil/gasoline at a site which had been operated by Texaco
2 KFK sent Go Fast an engagement letter on November 29, 2012, which outlined the
scope of their attorney client relationship and billing agreement (‘ 2012 Agreement”)
In the 2012 Agreement, Go Fast agreed to pay KFK on an hourly basis, as well as a 59 0
contingency fee The 2012 Agreement stated ‘ if you are awarded damages in the case ’
then the firm is entitled to collect five percent (5%) “of any recovery ’
3 At the time of KFK s engagement, KFK had an attorney who was a partner at the firm,
Leigh Fletcher (“Attorney Fletcher”), who had expertise in environmental law
Attorney Fletcher prepared the engagement letter Paul Sabers was the representative
' The Virgin Islands Supreme Court has stated that before conducting a Banks“ analysis parties should be given a
chance to brief the issue Malloy 1 Reyes 61 V 163 176 (V l 2014) ( Here, the Superior Court erred in failing to
give the parties an opportunity to brief the issue of abandonment of an easement under the Banks framework, and
funher erred by failing to conduct a Banks analysis at all ")
Go Fast Charters, LLC v Texaco Carlbbean Inc 2024 V1 Super 26U
Case N) ST 2010 CV 00672
Memorandum Opinion
Page 3 of 6
for Go Fast who signed the 2012 Agreement and communicated with KFK on behalf
of Go Fast
4 Sometime between 2013 and January 1, 2014, Attorney Fletcher left KFI\
5 KFK worked on the case from November 2012 to June 2014 Both Attorney Kellerhals
and Attorney Christopher Allen Kroblin averted that the firm viewed the case as a
business dispute and was ready to litigate it as such
6 Go Fast fell behind on payments to KFK Go Fast terminated its relationship with KFK
in 2014 and retained new counsel Attorney Jack Dema ( Attorney Dema ’) KFK and
Paul Sabers agreed to a one time lump sum payment of thirty five thousand dollars
($35,000) in return for a discount on the remaining balance of thirteen thousand two
hundred ninety seven dollars and seventy two cents ($13,297 72) (the “2014
Agreement ’) The email also stated which bank account to wire the funds to and by
what date the fimds were to be sent
7 1n the email establishing the 2014 Agreement, KFK additionally stated that “[a]s
discussed previously, this discount is without prejudice to our previously agreed upon
5% lien on any recovery in the case, which we will still retain
8 Afier the 2014 Agreement was made KFK filed a Notice of Attomey’s Lien on July
16 2014
9 Upon receiving the lien notice, Paul Sabers sent an email on July 16, 2014, stating
‘ Chris, I don’t know why you felt this was necessary Your firm has been paid in full
for all legal expenses I agreed that your firm was entitled to 5% in our original
agreement with Leigh Fletcher Your lien states your encumbering the entire award I
acknowledge your untitled [sic] to the 5% but that is the extent of your participation in
any award or settlement I receive 1 want this spelled out more clearly in your lien
please ’0
10 Attorney Dema approached the case from an environmental law perspective and re
opened discovery, retained new experts, briefed issues involving the statute of
limitations causation, the economic loss rule, implied in fact contract theory, the new
business rule, and speculative damages
1 1 Go Fast settled the case in 2017 before trial 3
12 Paul Sabers testified at the hearing He stated that he negotiated the retainer agreement
with Attorney Fletcher and that the reason he had retained KFK was because of her
expertise in environmental law When asked about the agreement he stated this about
’ Plaintiff‘s Ex G
‘ The amount of money Texaco paid Go Fast is under seal
Go Fast Charters, LLC v Texaco Caribbean, Inc 2024 VI Supei 26U
Case No ST 2010 CV 00672
Memorandum Opinion
Page 4 0f 6
the 5% lien “That if I were awarded damages, I guess to a jury trial afler the fact, that
that would relate to the 590 based on awarded damages And that was the agreement It
was never modified That was our agreement It was binding
13 Paul Sabers also testified that the meaning of “without prejudice was not explained
to him and that he did not agree to any modification of the original agreement 3
contingent fee which he said was “based on damages awarded in a jury trial He further
testified that it was not his understanding that the emails would obligate him to pay five
percent (5%) of any settlement amount He further testified that as a businessman he
would not trade a $13 297 72 discount for a $500 000 fee
[[1 CONCLUSIONS OF LAW
fi|6 Accordingly, the Court reaches the following Conclusions of Law following the
evidentiary hearing and post hearing briefings
l (1) Absent any statute or rule to the contrary of one or more elements of this right, which
shall then control, (2) an attorney and client may arrange by express or implied written
agreement that (3) the attorney shall have a lien for payment of costs and fees on the
judgment, settlement, or other recovery of a client (4) in an amount not to exceed what is
asserted in good faith and reasonable for work actually performed (5) and this lien takes
effect at the commencement of the action Further, the attorney must (6) file and provide
notice to any third party for the lien to be enforceable against that third party and (7) may
not unreasonably impede any dispute regarding those fees or the lien Lastly, (8) the court
or other tribunal in which judgment was received or, if settled, the case was commenced,
may adjudicate any fee or lien dispute 4
2 Thus, to bring an action to recover fees via an attomey’s charging lien the attorney must
have (1) a written agreement with a client, (2) there must have been a settlement or
judgment; (3) there must be nonpayment of the attomey’s reasonable fees and costs; and
(4) there must have been notice given to any relevant third parties 5
3 A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by Virgin Islands Supreme Court
Rule 21 1 l S(d)", or other law A contingent fee agreement shall be in a writing signed by
the client and shall state the method by which the fee is to be determined, including the
4 2023 VI Super 28 at 1] 46
5 Id at 1] 47
6 V I Supreme Court Rule 21 I l 5(d) of the Virgin Islands Rules of Professional Conduct states
A lawyer shall not enter into an arrangement for, charge, or collect
(1) any fee in a domestic relations matter the payment or amount of which is contingent upon the
securing of a di\ orce or upon the amount of alimony or support, or property settlement in lieu
thereof, or
(2) a contingent fee for representing a defendant in a criminal case
for
07 20 2024