BellSouth Telecommunications, LLC v. Serenity, Inc.

Filing 22

MEMORANDUM OPINION AND ORDER: The Court ORDERS as follows: 1. Pla's 21 MOTION for Summary Judgment is GRANTED; & 2. A judgment shall be entered contemporaneously. Signed by Judge Karen K. Caldwell on June 12, 2015. (MWZ) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
BELLSOUTH TELECOMMUNICATIONS,
LLC d/b/a AT&T Kentucky,

CIVIL ACTION NO. 5:14-139-KKC

Plaintiff,
MEMORANDUM
OPINION AND ORDER

V.
SERENITY, INC. d/b/a Five D’S
Communications,
Defendant.

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This is a fundamental breach of contract case—plaintiff asserts that there was a
valid contract between the parties, that the plaintiff performed under the contract, that the
defendant failed to perform, and that the plaintiff has suffered loss. Plaintiff moved for
summary judgment. (DE 21). Defendant did not respond to Plaintiff’s motion. The Court,
having reviewed the motion and all record evidence in this case, will grant Plaintiff’s
motion for summary judgment.
I. BACKGROUND
Plaintiff BellSouth Telecommunications, LLC doing business as AT&T Kentucky
(“AT&T Kentucky”) entered into two contracts with Defendant Serenity, Inc. doing business
as Five D’s Communications (“Serenity”)—an interconnection agreement and a separate
commercial agreement. (DE 21-2 ICA Agreement at 25; DE 21-4 Admissions at 2; DE 21-7
Commercial Agreement at 46.) AT&T Kentucky then provided services to Serenity
pursuant to the terms of the two contracts. (DE 21-5 Decl. of David Egan at ¶ 5.) Serenity
has not paid-in-full for AT&T Kentucky’s services; Serenity owes $166,246.38 under the

interconnection agreement and $24,519.15 under the separate commercial agreement. (DE
21-5 Decl. of David Egan at 2, 4, 18.)
II. BREACH OF CONTRACT
Pursuant

to

the

contracts

between

AT&T

Kentucky

and

Serenity,

the

interconnection agreement is governed by Georgia law and the separate commercial
agreement is governed by Kentucky law. (DE 21-2 ICA Agreement at 19; DE 21-7
Commercial Agreement at 37–38.) The elements of a breach-of-contract claim are the same
under the laws of both Georgia and Kentucky. J’Carpc, LLC v. Wilkins, 545 F. Supp. 2d
1330, 1339 (N.D. Ga. 2008); Sudamax Industria e Comercio de Cigarros, Ltda v. Buttes &
Ashes, Inc., 516 F. Supp. 2d 841, 845 (W.D. Ky. 2007) (citing Lenning Commercial Union
Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001); Strong v. Louisville & Nashville R. Co., 43
S.W.2d 11, 13 (Ky. 1931)) (“The elements of a breach of contract are: (1) the existence of a
valid contract; (2) breach of the contract; and (3) damages or loss to plaintiff.”).
AT&T Kentucky and Serenity entered into valid contracts. (DE 21-2 ICA Agreement
at 25; DE 21-4 Admissions at 2; DE 21-7 Commercial Agreement at 46.) Serenity breached
these contracts. (DE 21-5 Decl. of David Egan at 2, 4, 18.) And as a result, AT&T Kentucky
has suffered a loss of non-payment of $190,765.53. (DE 21-5 Decl. of David Egan at 4, 18.)
As a matter of law, AT&T Kentucky has established Serenity’s breach of contract and the
loss suffered. JCarpc, LLC, 545 F. Supp. 2d at 1339; Sudamax, 516 F. Supp. 2d at 845.
III. PREJUDGMENT INTEREST
Additionally, AT&T Kentucky claims that, because the damages are “liquidated,”
AT&T Kentucky is entitled to prejudgment interest. (DE 21-1 Mot. for Summ. J. at 6.)
Under both Georgia and Kentucky law, liquidated claims are entitled to prejudgment
interest as a matter of right. Hale v. Life Ins. Co. of N. Am., 765 F.2d 22, 24 (6th Cir. 1986);
2

Crisler v. Haugabook, 706 S.E.2d 184, 185 (Ga. Ct. App. 2011). A liquidated claim exists
when the amount of the claim is a “sum certain.” Hale, 765 F.2d at 24. “Common examples
[of a sum certain include] a bill or note past due, an amount due on an open account, or an
unpaid fixed contract price.” Nucor Corp. v. Gen. Elec. Co., 812 S.W.2d 136, 141 (Ky. 1991).
Serenity has failed to pay a fixed contract price. (See DE 21-5 4–20.) The amount due
is a sum certain; therefore, AT&T Kentucky is entitled to prejudgment interest. Hale, 765
F.2d at 24; Crisler, 706 S.E.2d at 185. Accordingly, the interconnection agreement—
governed by Georgia law—is entitled to prejudgment interest at a rate of seven percent
(7%) per annum simple interest, Ga. Code § 7-4-2, and the separate commercial
agreement—governed by Kentucky law—is entitled to prejudgment interest at a rate of
eight percent (8%) per annum, KRS § 360.010(1).
IV. CONCLUSION
For the reasons stated above, the Court hereby ORDERS as follows:
1. Plaintiff’s motion for summary judgment (DE 21) is GRANTED; and
2. A judgment consistent with this Memorandum Opinion and Order will be
entered contemporaneously.
Dated June 12, 2015.

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