George v George [2007] FMKSC 16; 15 FSM Intrm. 270 (Kos. S. Ct. Tr. 2007) (17 September 2007)

KOSRAE STATE COURT TRIAL DIVISION
CIVIL ACTION NO. 30-064

WEBSTER GEORGE,
Plaintiff,

vs.

ERSINA V. GEORGE,
Defendant.
___________________________________

MEMORANDUM OF DECISION; JUDGMENT

Aliksa B. Aliksa
Chief Justice

Decided: September 17, 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  Pleadings; Statutes of Limitations

The affirmative defense of statute of limitations is to be raised affirmatively in the responsive pleading; it is not a defense that may be brought by a Rule 12(b) motion. George v. George, 15 FSM Intrm. 270, 273 (Kos. S. Ct. Tr. 2007).

Statutes of Limitations

The statute of limitations for an action on an open account is six years and when the testimony at trial shows transactions on the open account within the six-year statutory period a motion to dismiss on statute of limitations will be denied. George v. George, 15 FSM Intrm. 270, 273 (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, the defendant indicated her acceptance of this exchange by making payments. These actions created an enforceable contract. George v. George, 15 FSM Intrm. 270, 273 (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 not address the plaintiff's alternative claims under unjust enrichment and promissory estoppel. George v. George, 15 FSM Intrm. 270, 273 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof

In a civil case, a plaintiff must prove the allegations of their complaint 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 defendant's version of events is the more likely, and the plaintiff fails to meet its burden of proof. George v. George, 15 FSM Intrm. 270, 274 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof

An open account is not self-proving; it must be supported by enough evidence to show the account's accuracy. George v. George, 15 FSM Intrm. 270, 274 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof

When the evidence offered to support the amount claimed in the complaint is minimal and receipts, which the plaintiff's own witnesses testified were available, were not offered into evidence; when one page of the ledger was identified and marked, but never offered into evidence; when the evidence to support the plaintiff's claims consists of his former employees' testimony on the amount owed and the defendant's acknowledgment that she owes some amount but not the amount claimed; when the defendant could have used the receipts to show they did not support the amount in the ledger but did not and did not question the plaintiff's witnesses as to the specific amounts shown in the receipts, the court was given no evidence to weigh in support of an alternative explanation and can only look at the testimony offered and determine whether the facts asserted by the plaintiff are more probably true than false. Thus, based on the defendant's acknowledgment that some amount is owed, but not the $14,431.58 claimed by the plaintiff, and based on the testimony of the plaintiff's witnesses about the ledger and the balance, the evidence weighs slightly to the plaintiff and that it is more probably true than false that the defendant owes the amount of $6,220.52. George v. George, 15 FSM Intrm. 270, 274-75 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof

When evidence is available but not offered, the question is raised whether the withheld evidence supported the claim. George v. George, 15 FSM Intrm. 270, 274 (Kos. S. Ct. Tr. 2007).

Evidence  Burden of Proof

The parties have the responsibility to put forward the evidence to support their client's case. This is not the court's responsibility. George v. George, 15 FSM Intrm. 270, 275 (Kos. S. Ct. Tr. 2007).

Contracts  Damages; Interest and Usury

The 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. George, 15 FSM Intrm. 270, 275 (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 has been upheld. George v. George, 15 FSM Intrm. 270, 275 (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. George, 15 FSM Intrm. 270, 275 (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. George, 15 FSM Intrm. 270, 275-76 (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. George, 15 FSM Intrm. 270, 276 (Kos. S. Ct. Tr. 2007).

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COURT'S OPINION