Kilafwakun v Kilafwakun [2001] FMKSC 1; 10 FSM Intrm. 189 (Kos. S. Ct. Tr. 2001) (14 May 2001)

KOSRAE STATE COURT
TRIAL DIVISION

Cite as Kilafwakun v. Kilafwakun
10 FSM Intrm. 189 (Kos. S. Ct. Tr. 2001)

[10 FSM Intrm. 189]

EPA KILAFWAKUN,
Plaintiff,

vs.

PAUL KILAFWAKUN, BRINE MAEKA, and
TOLENOA KILAFWAKUN,
Defendants.

CIVIL ACTION NO. 68-00

MEMORANDUM OF DECISION; JUDGMENT

Yosiwo P. George
Chief Justice

Trial: April 25, 2001
Decided: May 14, 2001

APPEARANCES:

For the Plaintiff: Chang B. William, trial counselor
_ Kosrae State Legislature
P.O. Box 187
Lelu, Kosrae FM 96944

For the Defendants: Steven J. Sigrah, trial counselor
_ Kosrae State Legislature
P.O. Box 187
Lelu, Kosrae FM 96944

* * * *

[10 FSM Intrm. 190]

HEADNOTES

Civil Procedure ; Filings
Filing and service of pre-trial briefs by the court ordered deadline are mandatory and not optional. Violation of court orders with respect to the filing of pre-trial briefs, or any other required action, may result in sanctions against that party. All requests for an enlargement of time to file pre-trial briefs must be made in writing. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 193 (Kos. S. Ct. Tr. 2001).

Civil Procedure ; Service
Service upon legal counsel may be made by leaving a copy of the document at his office with his clerk or other person in charge thereof. It is proper to serve a person who has an office at or is employed at the Kosrae State Legislature by leaving a copy of the document with the Administrative Secretary at the Legislature. It is the legal counsel's professional responsibility and duty to follow up with the Administrative Secretary regarding any documents that may have been served upon him at the Legislature during his absence from the Legislature. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 193 (Kos. S. Ct. Tr. 2001).

Attorney, Trial Counselor and Client; Civil Procedure ; Service
Counsel must act with reasonable diligence and promptness in representing a client. Reasonable diligence requires follow up by legal counsel to determine whether any documents have been served upon him at his office. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 193 (Kos. S. Ct. Tr. 2001).

Civil Procedure ; Service
When counsel personally accepted the court's order and signed the return of service he had received actual and personal hand delivery of the order. Under these circumstances, the argument that he was not properly served with this document is without merit. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 193 (Kos. S. Ct. Tr. 2001).

Contracts
A contract is a promise between two parties for the future performance of mutual obligations, which the law will enforce in some way. For the promise to be enforceable, there must be an offer and an acceptance, definite terms, and consideration for the promise. For an agreement to be binding it must be definite and certain as to its terms and requirements, and it must identify the subject matter and spell out the essential commitments and agreements with respect thereto. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2001).

Contracts
When the existence of a contract is at issue, the trier of fact determines whether the contract did in fact exist. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2001).

Contracts
When there was nothing of value exchanged for a promise to allow a parcel of land to be used to build a house, there was no consideration for the promise. Since consideration for a promise is required for a promise to be enforceable as a contract, when there was no consideration given in exchange for the promise, the parties did not have an enforceable contract. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 194 (Kos. S. Ct. Tr. 2001).

Contracts; Equity ; Estoppel and Waiver
Where no contract exists, the court may use its inherent equity power to fashion a remedy under equitable doctrines. The doctrine of promissory estoppel allows enforcement of promises that induce reliance. The doctrine of promissory estoppel, also referred to as detrimental reliance, is summarized

[10 FSM Intrm. 191]

as: A promise which the promisor should reasonably expect to induce action on the part of the promisee, and which does induce such action, is binding if justice requires enforcement of the promise. The remedy for breach may be limited as justice requires. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Contracts; Equity ; Estoppel and Waiver
Under the doctrine of promissory estoppel, a person's reliance upon a promise may create rights and duties. The finding of detrimental reliance does not depend upon finding any agreement or consideration. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Equity ; Estoppel and Waiver
When the plaintiff relied upon the defendant's promise to let him use the land to build his house, and the defendant should have reasonably expected the plaintiff to take action on this promise, such as obtaining financing through a loan, leasing equipment, and purchasing materials and labor to build his house, and when the plaintiff did in fact rely upon the promise and took action to secure financing through a loan, the doctrine of promissory estoppel is applicable and the promise is enforceable. Justice requires the enforcement of the promise and the plaintiff is entitled to recover the amount expended in reliance of his promise, based upon the doctrine of promissory estoppel. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Contracts; Remedies ; Restitution
Where no contract existed, a court may use its inherent equity power to fashion a remedy under the doctrine of restitution. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Contracts; Remedies ; Restitution
The doctrine of unjust enrichment generally applies where there is an unenforceable contract. It requires a party to either return what has been received or pay the other party for it. The unjust enrichment doctrine is based on the idea one person should not be permitted unjustly to enrich himself at the expense of another. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Remedies ; Restitution
Restitution is a remedy which returns the benefits already received by a party to the party who gave them where the court can find no contract. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 195 (Kos. S. Ct. Tr. 2001).

Evidence ; Burden of Proof
When defendants did not submit any proof at trial in support of their affirmative defense, they did not carry their burden of proof. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Equity ; Estoppel and Waiver; Remedies ; Restitution
Evidence that, sometime before defendant's marriage, the plaintiff did have some limited intimate contact on one occasion with the woman who later became the defendant's wife, does not serve as a defense to the plaintiff's claim of unjust enrichment and to recover restitution for the defendant's stopping construction of the plaintiff's house. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Contracts ; Damages; Equity ; Estoppel and Waiver; Remedies ; Restitution
The trial court has wide discretion in determining the amount of damages in contract and quasi-contract cases involving equitable doctrines, such as promissory estoppel and restitution. The plaintiff may be compensated for the injuries by awarding compensation for the expenditures made in reliance

[10 FSM Intrm. 192]

on the promise. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Contracts ; Damages; Remedies ; Restitution
Claimed expenditures for food and beverages will not be awarded when the purchase and consumption of these items was not dependent upon the defendant's promise, and labor costs will not be allowed as damages when there was no evidence presented at trial that the plaintiff paid any person a specific sum for labor. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Contracts ; Damages; Debtors' and Creditors' Rights; Judgments
Generally, pre-judgment interest is only included as an element of damages as a matter of right when a debtor knows precisely what he is to pay and when he is to pay it. This occurs when a party has been deprived of funds to which he was entitled by virtue of the contract, and the defaulting party knew the exact amount and terms of the debt. In those types of cases, the goal of compensation requires that the complaining party be compensated for the loss of use of those funds. This compensation is made in the form of interest. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Judgments
In the absence of a statute, an award of prejudgment interest is in the court's discretion. If pre-judgment interest is awarded, the statutory, post-judgment interest rate of 9% per annum is appropriate. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 196 (Kos. S. Ct. Tr. 2001).

Equity ; Estoppel and Waiver; Judgments; Remedies ; Restitution
Pre-judgment interest is not appropriate and a claim for it will be denied when there was no agreement involving a promise to pay money, when the plaintiff was not deprived of funds that he was entitled to because there was no contract made between the parties to pay money, and when the plaintiff was awarded damages based upon the equitable doctrine of promissory estoppel for the plaintiff's expenditures made in reliance on a promise. Kilafwakun v. Kilafwakun, 10 FSM Intrm. 189, 197 (Kos. S. Ct. Tr. 2001).

Civil Procedure ; Dismissal; Evidence ; Burden of Proof