FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2005-014

MARTIN JANO d/b/a MARTIN JANO
LAW OFFICES,
Plaintiff,

vs.

KAZUHIRO FUJITA,

Defendant.

____________________________

ORDER AND MEMORANDUM

Andon L. Amaraich
Chief Justice

Decided: July 6, 2009

APPEARANCES:

 For the Plaintiff: Joseph S. Phillip, Esq.
 P.O. Box 464
 Kolonia, Pohnpei FM 96941

 For the Defendant: Marstella E. Jack, Esq.
 P.O. Box 2210
 Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney's Fees; Civil Procedure  Frivolous Actions
 A court may award attorney's fees against a party when that party acts vexatiously, in bad faith, presses frivolous claims, or employs oppressive litigation practices. Jano v. Fujita, 16 FSM Intrm. 502, 503 (Pon. 2009).

Torts  Interference with a Contractual Relationship
 The elements of interference with contractual relations are 1) a valid contract; 2) knowledge by the defendant of the contract; 3) intentional interference by the defendant which induces breach of the contract; 4) absence of justification on the defendant's part; and 5) resulting damages. Jano v. Fujita, 16 FSM Intrm. 502, 504 (Pon. 2009).

Torts  Interference with a Prospective Business Opportunity
 The elements of interference with prospective business advantage are 1) plaintiff's existing or reasonable expectation of economic benefit or advantage; 2) defendant's knowledge of that expectancy; 3) defendant's wrongful intentional interference with that expectancy; 4) reasonable probability that the plaintiff would have received anticipated economic benefit in absence of interference; and 5) damages resulting from interference. Jano v. Fujita, 16 FSM Intrm. 502, 504 (Pon. 2009).

Attorney's Fees; Civil Procedure  Frivolous Actions
 When the plaintiff failed to present at trial any evidence on two elements of his causes of action; when the plaintiff alone testified and his testimony itself was speculative, conclusory, and lacking in foundation;, when given the testimony's overall lack of credibility, as well as the lack of other evidence presented at trial to sustain the plaintiff's burden of proof, the court can conclude that the plaintiff brought the lawsuit vexatiously and in bad faith, and, accordingly, the defendant may be awarded his attorney's fees incurred in the course of the lawsuit. Jano v. Fujita, 16 FSM Intrm. 502, 504 (Pon. 2009).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

 On March 2, 2009, the defendant Kazuhiro Fujita ("Fujita") filed his motion to award attorney's fees. On March 11, 2009, the plaintiff Martin Jano ("Jano") filed his response.

 In his motion, Fujita argues that he should be awarded his attorney's fees because the instant litigation was frivolous and vexatious. Fujita relies on Coca-Cola Beverage Co. (Micronesia) v. Edmond, 8 FSM Intrm. 388, 392 (Kos. 1998), which holds that the court may award attorney's fees against a party when that party acts vexatiously, in bad faith, presses frivolous claims, or employs oppressive litigation practices. Fujita asserts that Jano was unable to produce a single piece of evidence to support his claim, and that this fact in itself showed "a complete absence of any good faith effort on the part of the plaintiff to prosecute this case." Mot. at unnumbered 3.

 In response, Jano contends that Fujita made untrue statements in a letter that Fujita wrote to the Chief Justice of the Pohnpei Supreme Court, and that these statements resulted in damage to Jano. Jano asserts that "[t]he case was filed based on reasonable or probable cause exists [sic]." Resp. at 3. Jano concludes that "it was reasonable for the Plaintiff to believe that Defendant would be liable for his wrongful and illegal actions." Id.

 This matter went to trial on two causes of action: interference with contractual relations and interference with prospective business advantage. The elements of the former are 1) a valid contract; 2) knowledge by the defendant of the contract; 3) intentional interference by the defendant which induces breach of the contract; 4) absence of justification on the part of the defendant; and 5) resulting damages; while the elements of the latter are 1) plaintiff's existing or reasonable expectation of economic benefit or advantage; 2) defendant's knowledge of that expectancy; 3) defendant's wrongful intentional interference with that expectancy; 4) reasonable probability that the plaintiff would have received anticipated economic benefit in absence of interference; and 5) damages resulting from interference. Jano v. Fujita, 16 FSM Intrm. 323, 327 (Pon. 2009) (citing respectively Saey v. Xerox Corp., 31 F. Supp. 2d 692, 700 (E.D. Mo. 1998); Herbert v. Newton Memorial Hosp., 933 F. Supp. 1222, 1229 (D.N.J. 1996), aff'd, 116 F. Ed 468 (3d Cir. 1997)).

 One of the elements that a plaintiff must prove by a preponderance of the evidence relative to interference with contractual relations is that the defendant knew of the specific contract that he allegedly interfered with. Similarly, with regard to interference with prospective business advantage, a plaintiff must show that the defendant knew of the specific expectancy that he allegedly interfered with. Jano failed to present any evidence on these two elements at trial: no evidence was presented to show that Fujita either knew of a specific contract or specific economic advantage, or tried to interfere with it. Furthermore, Jano alone testified. He did not present the testimony of anyone whose business relationship with Jano was impaired as a result of Fujita's actions. Jano's testimony itself was speculative, conclusory, and lacking in foundation. Given the overall lack of credibility of the testimony, as well as the lack of other evidence presented at trial to sustain Jano's burden of proof with respect to both the claim for interference with contractual advantage and interference with prospective business advantage, the court concludes that Jano brought the instant lawsuit vexatiously and in bad faith.

 Accordingly, Fujita's motion for attorney's fees is granted. Fujita is awarded his attorney's fees incurred in the course of this lawsuit.

 On or before July 20, 2009, Fujita will submit an affidavit of attorney's fees that will comply with the standard set out in People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM Intrm. 403, 421 (Yap 2006). The affidavit should show the date, the work done, and the amount of time spent on each service for which compensation is requested. Id.

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