George v Albert [2007] FMKSC 10; Civil Action 38-2006 (2 October 2007)

KOSRAE STATE COURT TRIAL DIVISION

CIVIL ACTION NO. 38-06

WEBSTER GEORGE,
Plaintiff,

V

JOHNSTON S. ALBERT,
Defendant.

MEMORANDUM OF DECISION: JUDGMENT

Aliksa B. Aliksa
Chief Justice

Trial: May 24, 2007
Decided: October 2, 2007

APPEARANCES:

For the Plaintiff: Snyder H. Simon, Esq.
P.O. Box 1017
Tofol, Kosrae FM 96944

For the Defendant: Canney L. Palsis, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

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HEADNOTES

Civil Procedure  Default and Default Judgments
A motion for entry of default will be denied when there is insufficient proof of service of notice of the complaint. George v. Albert, 15 FSM Intrm. 323, 325 (Kos. S. Ct. Tr. 2007).

Contracts  Formation
When the plaintiff exchanged goods with the defendant in exchange for the defendant agreeing to make payments on the account and the defendant indicated her acceptance of this exchange by making payments, their actions created an enforceable contract. George v. Albert, 15 FSM Intrm. 323, 326 (Kos. S. Ct. Tr. 2007).

Contracts; Remedies  Restitution
When the court concludes that there was a contract between the plaintiff and the defendant, it will do not address the plaintiff's alternative claims under unjust enrichment and promissory estoppel. George v. Albert, 15 FSM Intrm. 323, 326 (Kos. S. Ct. Tr. 2007).

Civil Procedure  Default and Default Judgments
Kosrae Civil Rule 55(b)(2) provides that a party is entitled to at least three days written notice before a hearing on a motion for default. An entry of default will be denied when the plaintiff had six months in which to make the motion but waited until discovery had been completed and it was the day before trial; when both parties had already participated in discovery and were prepared to proceed with trial and had submitted pre-trial briefs and subpoenaed witnesses; and since, if, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence, the court may conduct such hearings as it deems necessary even if a default judgment had been granted, a hearing would have been necessary to determine the amount of damages and that hearing would have produced the same evidence and the same outcome as the trial. George v. Albert, 15 FSM Intrm. 323, 327 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof
In a civil case, a plaintiff must prove the allegations by a preponderance of evidence in order to prevail. Preponderance of the evidence is not evidence to a moral certainty or clear and convincing evidence. As a standard of proof, preponderance of the evidence means that the facts asserted by the plaintiff are more probably true than false. But, if the plaintiff's evidence is less convincing than that offered in opposition, then the defendant's version of events is the more likely, and the plaintiff fails to meet its burden of proof. George v. Albert, 15 FSM Intrm. 323, 327 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof
When the receipts did not support the amount stated in the ledger and claimed by the plaintiff even though the plaintiff's witness testified that the receipts would support the full amount; when the plaintiff was specifically ordered to produce at trial the original of all receipts, ledgers, and any other documents pertaining to the defendant's account but failed to submit receipts supporting the amount in the ledger produced and failed to submit the full ledger for the defendant's account; and when the defendant acknowledged owing some amount and did not dispute the receipts signed by him, the court will award the plaintiff the amounts shown in the receipts and ledger with credit for the defendant's payments. George v. Albert, 15 FSM Intrm. 323, 327 (Kos. S. Ct. Tr. 2007).

Interest and Usury; Judgments
A court has the discretion to award pre-judgment interest, but it is not a matter of right unless the debtor knows precisely what he is to pay and when payment is due. The purpose of awarding interest is to compensate the complaining party for losing use of the funds. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

Contracts  Damages; Interest and Usury
When the parties have a written agreement stating that interest would be added to the unpaid balance, an award of pre-judgment interest will be upheld. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

Contracts  Damages; Interest and Usury
When the defendant agreed to make regular payments but there was no written agreement to pay interest on the defendant's open account; when the ledger page showing payments contains a 25-cent charge at the time of each payment but this does not correspond to an interest calculation; and when there is no evidence to show interest was discussed or agreed to by the defendant, the plaintiff is not entitled to pre-judgment interest. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

Attorney's Fees
When an attorney's fee award is sought, the retainer agreement is not relevant; it is not even discoverable because there is generally no relationship between the attorney's fees and the subject matter of a pending action. The retainer agreement will therefore not be considered in deciding an attorney fee request. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

Attorney's Fees
Attorneys fees are allowable against the opposing party if a party acts vexatiously, in bad faith, presses frivolous claims, or employs oppressive litigation practices, or when a party's successful efforts have generated a common fund or extended substantial benefits to a class. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

Attorney's Fees
Normally, in the absence of a statute to the contrary, a court will proceed on the assumption that the parties will bear their own attorney's fees because the usual rule is that each party pays its own attorney's fees. George v. Albert, 15 FSM Intrm. 323, 328 (Kos. S. Ct. Tr. 2007).

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COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice: