FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2016-007

DERRICK HELGENBERGER,			)					
)
Plaintiff,			)
)
vs.					)
)
HYOJONG CHUNG, individually and in his	)
capacity as General Manager of Best and	)
Best Motors, Inc., and BEST AND BEST	)
MOTORS, INC.,				)
)
Defendants.			)
__________________________________________	)

	ORDER DETERMINING REMEDY AND TO ENTER JUDGMENT AND TO ENTER JUDGMENT

	Larry Wentworth
	Associate Justice

	Trial:  September 22, 2017
	Decided:  November 7, 2017
	Amended:  November 8, 2017

APPEARANCES:

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

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

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	HEADNOTES

Contracts  Damages  Consequential
Consequential damages are losses that do not flow directly and immediately from an injurious act but that result indirectly from the act.  Helgenberger v. Chung, 21 FSM R. 404, 406 n.1 (Pon. 2017).

Contracts  Damages
A court cannot award damages when there was no evidence at trial that would make those amounts sufficiently certain for a court to award those damages and when the plaintiff’s post-trial affidavit outlining damages cannot be considered evidence properly introduced at trial or properly before the court.  Helgenberger v. Chung, 21 FSM R. 404, 406 (Pon. 2017).

Contracts  Damages  Consequential
Consequential damages can only be awarded if the loss was such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.  Helgenberger v. Chung, 21 FSM R. 404, 407 (Pon. 2017).

Contracts  Damages  Consequential
When there is no evidence that both sides contemplated that if the defendants did not repair the plaintiff’s vehicle, the defendants would then be liable for all the plaintiff’s transportation expenses, the plaintiff cannot be awarded those consequential damages.  Helgenberger v. Chung, 21 FSM R. 404, 407 (Pon. 2017).

Contracts  Damages
A trial court has wide discretion in determining damages in contract and quasi-contract cases involving equitable doctrines.  The goal is to try to put the injured party in as good a position as he would have been were it not for the breach of contract.  Helgenberger v. Chung, 21 FSM R. 404, 407 (Pon. 2017).

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	COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This case was tried before the court on September 22, 2017.  After hearing the evidence, the court determined that this was a breach of contract case, and that the plaintiff, Derrick Helgenberger, was not entitled to any relief on the basis of his contract to buy a used Sorrento vehicle from the defendants.  The court determined that there was a second contract, a contract to repair the vehicle, on which Helgenberger was entitled to some relief.  The court therefore asked for briefing on what form this relief could or should take and what remedies it could order since specific performance was problematic as the court was incapable of properly supervising any repair efforts.

	I.

The parties had agreed, in September 2015, that the defendants would order parts to repair Helgenberger’s vehicle, which he had bought from the defendants one year earlier.  The part that was needed to repair the vehicle was the vehicle’s front passenger side front quarter frame, which needed replacement since it had rusted off.  The court found, as fact, that this was the part the defendants agreed to order for the repair it also agreed to conduct.

The part that eventually arrived was a complete vehicle frame.  The defendants did not have the repair equipment that could handle the replacement of the vehicle’s entire frame.  The defendants asked Helgenberger to pay $1,000 for the part, which they assert was its cost, and to take his vehicle, which has remained on the defendants’ premises, somewhere else to be fixed.  According to Helgenberger, no other repair shop on Pohnpei could, or would, perform all the necessary work to replace the vehicle’s entire frame.

	II.

Helgenberger now seeks $21,050 in damages.  This he calculates as $5,000 (one half of what was paid for the vehicle because he only got about one year’s use from the vehicle), and a further $16,050 for the expenses he incurred as a consequence of the defendants not having repaired or replaced the vehicle.  Those expenses were for transporting his child to the hospital for weekly treatments and for transporting his father’s workers to feed the pigs and to conduct maintenance on the family apartments, that he superintends, for three months ($4,050 at $45 to $50 a day) and later for the rental of a mini-jeep from his wife’s neighbor for the last twenty months ($12,000 at $20 a day) for the same needs.

The court has already ruled, in its findings of fact and conclusions of law made from the bench at the end of trial, that the defendants did not breach the vehicle purchase contract and that Helgenberger was not entitled to any relief under that contract.  Helgenberger thus cannot be awarded a refund of half of his purchase payments for the vehicle.

The other damages Helgenberger seeks  his transportation expenses for the last twenty-three months, are what are called consequential damages.1  The court cannot award them.  First, there was no evidence at trial that would make those amounts sufficiently certain for a court to award those damages.  FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 573 (Pon. 2011) (if a contract breach’s loss is not proved with sufficient certainty, the injured party can recover nominal damages).  Helgenberger’s post-trial affidavit outlining these consequential damages cannot be considered evidence properly introduced at trial or properly before the court.  See Livaie v. Weilbacher, 13 FSM R. 139, 144 (App. 2005) (evidence first introduced in response to the trial judge’s questioning during defendant’s closing argument was not properly in evidence before the trial court as it was made during the closing arguments, not made under oath, not subject to cross-examination or to any rebuttal testimony by any witness).

But, even if Helgenberger had, during trial, properly introduced, and the court had admitted, evidence of consequential damages and had proven his transportation expenses to an exact certainty, the court still could not award those consequential damages.  Consequential damages can only be awarded if the loss was such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as the probable result of the breach of it.  FSM Dev. Bank v. Adams, 14 FSM R. 234, 256 (App. 2006); Carlos Etscheit Soap Co. v. McVey, 19 FSM R. 374, 377 (Pon. 2014).  There is no evidence that both sides contemplated that if the defendants did not repair Helgenberger’s vehicle, the defendants would then be liable for Helgenberger’s transportation expenses. Such a contemplation or agreement would have been very unlikely considering the time it would take for any ordered parts to arrive.  Thus, Helgenberger cannot be awarded consequential damages.

Accordingly, Helgenberger cannot be given a remedy or money damages along the lines he seeks.  In this case, money damages (other than nominal damages) are not reasonably calculable, and specific performance is unworkable.

	III.

The defendants suggest that, since the trial court has wide latitude in fixing damages in a breach of contract case and since Helgenberger failed to mitigate his damages, an adequate remedy would be for Helgenberger to be awarded the $1,000 part (whole frame) that the defendants ordered (and paid for) and have in their possession and for Helgenberger to take his vehicle and use that part to try to repair it.

This is a better resolution than nominal ($1) damages.  A trial court has wide discretion in determining damages in contract and quasi-contract cases involving equitable doctrines.  See Chuuk v. Actouka Executive Ins. Underwriters, 18 FSM R. 111, 120 (App. 2011); Kihara Real Estate, Inc. v. Estate of Nanpei (III), 6 FSM R. 502, 505 (Pon. 1994).  The goal is to try to put the injured party in as good a position as he would have been were it not for the breach of contract.

Here, if the defendants had ordered and received the correct part, Helgenberger would have still had to pay for that part, and would have also had to pay for the repair work.  By receiving the whole frame (without paying for it) and then cutting off the part he needs and having the vehicle repaired elsewhere, Helgenberger will have extra parts which he can resell, either as parts or as scrap, to his benefit.  He will still need to pay for the repair work, either by another repair shop or by his own mechanic.  But he will be in a position roughly equal, if not better, than he would have been but for the defendants’ breach.

Accordingly, the court hereby orders that judgment be entered as follows:  Derrick Helgenberger is awarded ownership of the vehicle frame, that the defendants ordered, at no cost to him, and he has 45 days to take possession of and remove the frame and his Sorrento vehicle from the defendants’ premises.  He, as the prevailing party, is also entitled to his expense, if any, for the service of process (service of his complaint and summons).  FSM Civ. R. 54(d).

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