Worswick v Federated States of Micronesia Telecommunications Corporation [2000] FMSC 14; 9 FSM Intrm. 460 (App. 2000) (24 July 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Worswick v Federated States of Micronesia Telecommunications Corporation, [2000] FMSC 14; 9 FSM Intrm 460 (App. 2000)

JUANITA WORSWICK,
Appellant,

vs.

FSM TELECOMMUNICATIONS CORP.,
Appellee.

__________________________________________

APPEAL CASE NO. Y1-1999

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*
Hon. Andrew Ruepong, Temporary Justice, FSM Supreme Court**

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
**Acting Chief Justice, State Court of Yap, Colonia, Yap

OPINION

Argued: June 8, 2000
Decided: July 24, 2000

APPEARANCES:

For the Appellant:
Mariano W. Carlos, Esq.
P.O. Box 272
Koror, Palau PW 96940

For the Appellee:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appeal and Certiorari - Standard of Review
The standard of review on a question of the sufficiency of the evidence is whether the trial court's findings are clearly erroneous. Only findings that are clearly erroneous can be set aside on appeal. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 462 (App. 2000).

Appeal and Certiorari - Standard of Review
A trial court's factual findings adequately supported by substantial evidence in the record cannot be set aside on appeal. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 462 (App. 2000).

Appeal and Certiorari - Standard of Review
The question whether the facts as found (or whether the facts as found which are not clearly erroneous) are sufficient evidence to meet the plaintiff's burden of proof is a question of law distinct from issues relating to the weight of the evidence, and as such a proper issue on appeal. Questions of law are reviewed de novo. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 462 (App. 2000).

Appeal and Certiorari - Standard of Review
A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 462 (App. 2000).

Appeal and Certiorari - Standard of Review
If an appellant alleging clear error fails to show that the trial court's factual finding was not supported by substantial evidence in the record, or if the factual finding was the result of an erroneous conception of the applicable law, or that, if after a consideration of the entire record, the appellate court is not left with a definite and firm conviction that a mistake has been made, the appellate court can only affirm. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 463 (App. 2000).

Appeal and Certiorari - Standard of Review
When the trial judge believed one witness's testimony and not another's, and gave an extensive analysis of the testimony before him that led him to that conclusion, there is no reason for the appellate court to disturb his conclusion, since it was supported by credible evidence and he had the opportunity to observe the witnesses and the manner of their testimony, and the appellate court did not have that opportunity. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 463 (App. 2000).

Appeal and Certiorari - Standard of Review
There are not reasons to find clearly erroneous the trial court's finding that the defendant continued to utilize her IDD service after she requested termination when the trial court had before it evidence that the calls reflected the same pattern as existed throughout the billing period. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 464 (App. 2000).

Appeal and Certiorari - Standard of Review
An appellate court cannot say that the trial court's finding was clearly erroneous when it was the result of weighing conflicting evidence. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 464 (App. 2000).

Contracts
As a general rule a creditor may rely on its running account, produced in the normal course of it business, to establish a prima facie case, but in the face of contrary credible evidence, it is insufficient to sustain the creditor's burden of proof and each item, or each item not given credit for, must be proven. But the rule does not apply when to support its running account, the plaintiff introduced copies of the accounts sent to the defendant, its internal records of the account, the record of the calls that the defendant said made sense made during the first seven-month period, the testimony of its Yap accountant and of the chief of its division of collections, and when the defendant's own testimony contradicted the record she had prepared in advance of trial showing the calls she admitted making. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 464 (App. 2000).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This appeal arises from the lower court's judgment after trial finding the defendant, Juanita Worswick, liable to the plaintiff, the FSM Telecommunications Corporation (Telecom), for various unpaid long distance telephone bills totaling $6,117.18. Worswick, the appellant, presented two issues of appeal, whether the findings were clearly erroneous and whether Telecom had proved its case by a preponderance of the evidence. We conclude that the findings are supported by substantial evidence and are not clearly erroneous and that the trial court was warranted in granting Telecom judgment on its claim.

I. Standard of Review

Worswick's issues essentially challenge the evidence before the trial court as insufficient to prove Telecom's case by a preponderance of the evidence. In previous civil appeals where the sufficiency of the evidence was challenged, we have merely stated the standard of review as "whether the trial court's finding is clearly erroneous." Wolphagen v. Ramp, [1999] FMSC 9; 9 FSM Intrm. 191, 194 (App. 1999); Damarlane v. United States, [1997] FMSC 33; 8 FSM Intrm. 45, 53 (App. 1997). The first appellate panel to consider the point stated: "Our standard of review on a question of the sufficiency of the evidence is whether they are clearly erroneous." Senda v. Mid-Pac. Constr. Co., [1991] FMSC 26; 5 FSM Intrm. 277, 280 (App. 1992) (citing FSM Civ. R. 52(a)). The Wolphagen and Damarlane courts cited Senda as their authority for this standard. "[O]nly findings that are clearly erroneous can be set aside on appeal." Opet v. Mobil Oil Micronesia, Inc., [1987] FMSC 11; 3 FSM Intrm. 159, 165 (App. 1987) (citing Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 24 (App. 1985)). A trial court's factual findings adequately supported by substantial evidence in the record cannot be set aside on appeal. Opet, 3 FSM Intrm. at 163, 165; Marcus v. Suka, [1998] FMCSC 6; 8 FSM Intrm. 300a, 300c (Chk. S. Ct. App. 1998); Emilios v. Setile, [1994] FMCSC 4; 6 FSM Intrm. 558, 561 (Chk. S. Ct. App. 1994); Cheni v. Ngusun, [1994] FMCSC 7; 6 FSM Intrm. 544, 547 (Chk. S. Ct. App. 1994).

These formulations of the standard of review, however, do not distinguish between the trial court's findings of fact and the trial court's (legal) conclusion that the facts it found are sufficient or insufficient to meet the plaintiff's burden of proof. The question whether the facts as found (or whether the facts as found which are not clearly erroneous) are sufficient evidence to meet the plaintiff's burden of proof is a question of law. 5 Am. Jur. 2d Appellate Review § 663 (1995) ("tfficiency of y of the evidence is a question of law, distinct from issues relating to the weight of the evidence, and as such a proper issue on appeal"). Questif law are reviewed de novo. Damarlane, 8 FSM Intrm. trm. at 52.

A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Thomson v. George, [1998] FMSC 36; 8 FSM Intrm. 517, 522 (App. 1998); Kinere v. Kosrae, [1993] FMSC 43; 6 FSM Intrm. 307, 309 (App. 1993); Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993). If an appellant alleging clear error fails to show that the trial court's factual finding was not supported by substantial evidence in the record, or if the factual finding was the result of an erroneous conception of the applicable law, or that, if after a consideration of the entire record, the appellate court is not left with a definite and firm conviction that a mistake has been made, the appellate court can only affirm. Emilios, 6 FSM Intrm. at 561; Cheni, 6 FSM Intrm. at 547.

II. Facts

We summarize only the essential facts needed to understand Worswick's contentions on appeal. The trial court's detailed findings and conclusions are found in FSM Telecomm. Corp. v. Worswick, [1999] FMSC 22; 9 FSM Intrm. 6 (Yap 1999).

On March 20, 1990, Worswick applied for International Direct Dialing (IDD) service. This was granted. On May 22, 1991, she applied for a new, unlisted number because of unwanted calls she was receiving, and the IDD service was continued with the new number. On April 30, 1992, Worswick applied for termination of the service. The charges for calls involved in this case are from September 14, 1990 through July 1, 1992 when the last call was charged. Telecom charged for 23 calls after April 30, 1992, with the last on July 1, 1992. All but two were operator assisted, 20 to her husband in Palau, two to Saipan and one to the Philippines.

In April or May of 1991, Worswick complained to the accountant in Telecom's Yap office about numerous charges for one and two minute calls between September 1990 through March 1991. When Worswick submitted her bills, she had circled all the calls she was not protesting at that time, and protested the rest. One hundred eighty-one were protested, 118 were circled. The protested calls were all one or two minutes long. As a result of her complaint and four or five complaints from other subscribers, Telecom credited Worswick and the others. Her credit was $530. The trial court determined that Telecom had erred in its addition and gave a further credit of $70. Worswick, 9 FSM Intrm. at 13.

III. Reasoning

The accountant for Telecom corroborates that part of Worswick's testimony concerning her April or May 1991 complaints of multiple one-and two-minute calls. The testimony was conflicted as to the meaning of the circled calls. The accountant testified that at the time of the complaints, Worswick said that she had circled those calls which "made sense." This was corroborated by the accountant's May 29, 1991 internal fax to Telecom's head office, which stated that the customer (Worswick) claimed that the uncircled calls had not been completed but were billed to her account. At trial Worswick denied making any of the circled calls. The trial judge believed the accountant's testimony, and gave and extensive analysis of the testimony before him that led him to that conclusion. We have no reason to disturb his conclusion, since it is supported by credible evidence and he had the opportunity to observe the witnesses and the manner of their testimony. Engichy v. FSM, [1984] FMSC 13; 1 FSM Intrm. 532, 556 (App. 1984). We do not have that opportunity.

This finding of Worswick's intent ("made sense") as to the circled calls had a number of effects on the outcome of the case – that there was a pattern to her calls, that the great majority were to her husband in Palau, and that she accepted the billing which recorded only the first 10 of the numbers dialed for one call, omitting the 11th.

Worswick states that the trial court made various factual findings that were clearly erroneous and gave three examples in her brief. We consider them in order.

Worswick contends that the finding that she continued to use her IDD service after she requested its termination was clearly erroneous, since Telecom should have ceased charges when her request was made. The trial court found simply that she "continued to utilize her IDD service throughout June until July 1, 1992, when it was terminated." Worswick, 9 FSM Intrm. at 10. In arriving at this finding the trial court had before it evidence that the calls reflected the same pattern as existed throughout the billing period, namely, that almost all calls were to her husband, that the two calls that were direct-dialed were also to her husband, and that a one- or two-minute call would be followed in a few minutes by a call to the same number which lasted several minutes. We cannot say that the finding is clearly erroneous. Worswick suggests that the operator of the assisted calls fraudulently charged her or his own calls to her number. This speculation does not affect our conclusion. Worswick also contends that she did not make the calls. This assertion is made from memory. She kept no record of the calls she made. These are not reasons to find the trial court's finding "clearly erroneous."

In the second example, Worswick contends that since she testified that the calls on her bills did not fit her calling habits, it was clearly erroneous for the trial court to find that the calls fit her calling pattern. But the trial court had before it evidence of her calling pattern through the acknowledged calls she did make during the seven months of September 1990 through March 1991, Telecom's billing statements and its internal records of Worswick's account, and her testimony that she could have made five calls a month to her husband, which conflicted with her introduced record which showed a total of 40 calls she admitted she made during the entire period at issue. These 40 calls did not include any in the period from September through December 1990, although she had earlier circled 46 calls in that time period as having "made sense." We cannot say that the trial court's finding was clearly erroneous. It was the result of weighing conflicting evidence.

Worswick's third and final example of findings that were clearly erroneous is her assertion that since an open account is not self-proving, it was clear error for the trial court not to require Telecom to produce further supporting evidence, such as the tickets made in operator assisted calls, to prove each contested call on the billing.

This assertion is correct as a general rule: the creditor may rely on its running account, produced in the normal course of it business, to establish a prima facie case, but in the face of contrary credible evidence, it is insufficient to sustain the creditor's burden of proof and each item, or in this case each item not given credit for, must be proven. 1 Am. Jur. 2d Accounts and Accounting § 21, at 576 (rev. ed. 1994). There is support in this assertion since after March 1991 and until the termination of the account we note that about 70% of all calls were operator assisted, and the record shows Telecom's witnesses saying that human error was the cause of some charges in the billings.

We do not find that the rule must be applied in this case. This is not a case in which the creditor is relying only on its periodic billing. Worswick does not contest specific calls. Her point is that the billings do not correctly reflect her pattern of long distance calls. Worswick had copies of Telecom's internal records and marked thereon, in advance of trial, those calls, totaling 40, which she admitted making, but at trial she testified she might make up to five calls a month. We note that the calls made with operator assistance were to the same people as Worswick customarily called.

On the other hand, to support of Telecom's running account, it introduced copies of those accounts sent to Worswick, its internal records of the account, the calls that Worswick said made sense made during the first seven months of the period involved in this case, testimony of its Yap accountant, and the chief of its division of collections. The trial court also had Worswick's own testimony, in very general terms, that she might have made up to five calls a month (which contradicted the record she had prepared in advance of trial showing the calls she admitted).

As mentioned, although Worswick did not raise on appeal specific calls as being improperly included in the judgment, we inquired into this during oral argument. We have examined each specific call which caused us to raise the matter during oral argument, and we are content that the consideration of each of them does not require us to disallow any.

IV. Conclusion

Accordingly, we affirm the trial court's judgment because there was substantial evidence in the record to support the trial court's findings that Telecom has proved its case by a preponderance of the evidence.