 |
[Home]
[Databases]
[WorldLII]
[Search]
[Copyright]
[Privacy]
[Disclaimers]
[Help]
[Feedback]
FSM - Digest of Cases from Kosrae State |
You are here: PacLII >> Federated States of Micronesia >> Indices
Federated States of Micronesia - Kosrae State Digest
Digest of Cases from Kosrae State
Collected and edited by Alick Jackson and Steven George
Jurisdiction
Jurisdiction of the Court over an appeal from a Land commission determination of ownership is authorized by section 11.614 of the Kosrae State Code. Vernon Youngstrom v. Claude Phillip (Civil Action 48-87) Order entered December 8, 1992.
The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases and in cases in which the national government is a party except where an interest in land is at issue. Linter Tolenoa v Tafunsak Municipal Government, FSM (Civil Action No. 36-85) Opinion, entered June 19, 1991.
The Kosrae State Constitution grants Kosrae State Court original jurisdiction in all cases which are not in the exclusive jurisdiction of the lower courts. Linter Tolenoa v Tafunsak Municipal Government, FSM (Civil Action No. 36-85) Opinion, entered June 19, 1991.
Trial Court jurisdiction of the national courts is divided into two categories, original and exclusive jurisdiction and concurrent jurisdiction. The grant of exclusive jurisdiction means exclusive to as to the states but not as to other national courts. The original and exclusive jurisdiction of the national courts includes cases...where the national government is a party. In addition to its exclusive jurisdiction, the trial courts of the national courts system would also have jurisdiction concurrent with state courts in cases involving constitutional issues or questions concerning national law (or diversity and foreign party cases. Linter Tolenoa v Tafunsak Municipal Government, FSM (Civil Action No. 36-85) Opinion, entered June 19, 1991.
State courts do not normally look to the national Constitution as a source of jurisdictional authority. Instead they typically rely upon state Constitutions and state laws for their authorization to act. The presumption is that a state court has jurisdiction to act on any case, which arise within that state. Given this understanding of the fact that the national Constitution does not place jurisdiction in the state court is not enough to warrant a conclusion that state courts are without jurisdiction to act in such a case. The proper question is not whether the national Constitution authorizes, but whether it bars state court jurisdiction. Linter Tolenoa v Tafunsak Municipal Government, FSM (Civil Action No. 36-85) Opinion, entered June 19, 1991.
Dismissal
Stipulated dismissal operates as adjudication upon the merits consistent with Rule 41(a)(1)(ii) of the Kosrae State Rules of Civil Procedure. Orlando Mares Tosie et al. v State of Kosrae (Civil Action No. 48-93) Order of Dismissal entered May 29, 1996.
In Rule 41 (a) (2) of Kosrae Civil Rules of Procedure the court could dismiss a civil action either upon request by the petitioner or by way of stipulation by parties. Mona Dagadouwe v Danio Dagadouwe (Civil Action No. 75-95) Order entered December 15, 1994.
A motion shall specifically state the grounds for it and set for the relief or order sought. Mona Dagadouwe v Danio Dagadouwe (Civil Action No. 75-95) Order entered December 15, 1994.
Land
KC 11.611 provides that the Land Commission and a registration team consider any evidence which it determine may aid in reaching a just decision... a hearing is public and a person claiming an interest in the parcel has the opportunity to present his/her claim. The statutes provide various methods for enforcing rules and regulations of Land Commission or administrative agencies. The Land Commission must strictly adhere to the standard, policies and limitations provided in the statute vesting power in them. Under the statutory provision KC 11.61, it is necessary that the Land Commission and a Land registration team consider any evidences which it determine may aid in reaching a just and fair decision. Theresa Palsis v Alokoa Talley (Civil Action No. 18-90) Opinion-January 23, 1993.
In the standard of review for the court of land commission’s decision and procedure, normally the court should consider whether the commission: a) has exceeded its constitutional statutory authority; b) has conducted a fair proceeding; c) has properly resolved any legal issues, and; d) has reasonably assessed the evidence presented. Heirs of Mongkeya v. Heirs of Mackwelung, 3 FSM Intrm. 395, 398 (Kos. St. Ct. Tr. 1988). Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
In land appeal cases, normally, it is primarily the task of the land commission, not the reviewing court, to assess the credibility of witnesses and to resolve factual disputes, since it is the commission not the court that is present when witnesses testify and only the commission sees the manner of witnesses testimony but commission’s major findings, and if no such explanation is made, the reviewing Court may conduct its own evidentiary hearing or may remand the case to the commission for further proceedings. Id, 3 FSM Intrm. At 401. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
Under Section 11.601, the commission appoints and supervises the registration team’s performance but does not interfere in its adjudication process. The registration’s team duties are spelled out in Section 11.606, which specifies that
" upon completion of inquiry, adjudication and recording interests submits its record to the commission for Review".
The Commission then serves as a review board under Section 11.608. The Commission either affirms the adjudication, remands the record to the team with instructions, or holds its own hearing. The concurrence of at least two Commissioners is necessary for Commission action. KSC, Section 11.615. The "Commission" is defined to consist of a Senior Commissioner and two Associate Commissioners. KSC, Section 7.701. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
Adverse Possession
Adverse possession is a doctrine under which one can acquire ownership of land if he, without the owner’s permission, uses the land openly, notoriously, exclusively, continuously and under a claim of right, the owner does not challenge such action until after the statute of limitation has run. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
Adverse possession must continue unabated for 20 years in order for the doctrine of adverse possession to be applicable in a land case. Etpison v. Perman, 1 FSM Intrm 405 (Pon. 1984) Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
It is a general principle that members of a family may not acquire possession against each other in the absence of clear, positive, and continued disclaimer and disavowal of title. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
A party claiming property rights based on adverse possession must demonstrate that he came on land with the intent of taking complete and exclusive control of the property. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
Section 11.601 of the Kosrae State Code directed that in land disputes the commission appoints and supervises the registration team but does not interfere in the adjudication process. Commissioner’s participation in adjudication process and also in the concurrence process as a commissioner contravenes Section 11.601 of the Kosrae Code. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Order of Remand, entered March 9, 1998.
KSC, Section 11.602 sets out standards of conduct for the Land Registration team and the Commissioners. The LRT and Commissioners are required to exercise the independence of a judge. This necessarily includes the standard of conduct that the judge (or Commission) disqualify himself in a proceeding in which his impartiality might reasonably be questioned, in where he has personal knowledge of the disputed evidentiary fact concerning the proceeding or adjudication, or served as a lawyer (or LRT member) in the matter in controversy. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
The court, in reviewing the land commission’s decision and procedure, should consider whether the commission reasonably assessed the evidence presented. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
The court recognizes that in LRT hearings, legal issues may fail to rise by reason the team only hears factual evidence from witnesses. Furthermore, not all of the witnesses have counsel at the preliminary and formal hearings, so it would not be fair to expect a lay person to raise legal issues. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
GCO 1988-2 provides the procedure for creating appeal records from agency decisions. Rule 10 (b)(1) requires the appellant to order the certified transcript of the parts of the proceedings not already on file, as he/she deems necessary. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
On appeal the court should not substitute its judgment for those well-founded findings of the Land Commission, but questions of Law are reserved to the court. Ludwig Tilfas v Heirs of Alik Luke (Civil Action No. 80-93) Opinion, entered March 9, 1998.
Certificate of Title
When the Land commission issued its determination of ownership to a party, an interested party has one hundred and twenty days to appeal the determination of ownership. If an appeal is not initiated within that time, a Certificate of Title is issued. Under the Kosrae Code, a Certificate of Title is considered a prima facie evidence of ownership in a proceeding involving a party who did not have notice of the Land Commission hearing. Allison Benjamin v Kosrae State (Civil Action No. 19-85) Opinion & Order Denying Summary Judgment, October 26, 1985.
Under Kosraen custom when a father gives property to his children, the property belongs to the children except that the father can take the property back anytime before his death. . Allison Benjamin v Kosrae State (Civil Action No. 19-85) Opinion & Order Denying Summary Judgment, October 26, 1985.
Upon receipt of a registration team adjudication and the accompanying record, the commission reviews the record and affirms the adjudication, holds the hearing and makes the determination of ownership based on the record and the evidence reviewed by the commission. Likiak Tulenkun v Clanry Tilfas (Civil Action 82-93)Opinion, entered October 21, 1994.
A determination of ownership by the Land Commission is subject to appeal to the court. An appeal of such matter must be within the 120 days provided by law. The court hears on appeal on the record, rules, provided it finds that there is good cause exist for trial of the matter. Likiak Tulenkun v Clanry Tilfas (Civil Action 82-93) Opinion, entered October 21, 1994.
Temporary Restraining Order
Temporary restraining order may be granted without written oral notice to the adverse or his attorney only if it clearly appears from specific facts shown by affidavit or by the varied complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. Freeling Sigrah v Isao Sigrah (Civil Action No. 8-87) Order Granting T.R.O., entered April 6, 198.
The facts that needed to be weight by the court in considering a motion requesting temporary restraining order are (1) irreparable harm and injury to applicant; (2) applicant’s likelihood to success on merits; (3) the impact on the public if temporary restraining order is granted; (4) whether applicant’s interest in receiving a preliminary injunction are more important that defendant’s interest as opposed to not having the injunction granted. Bingham Palik v Jacob Henry, (Civil Action No. 2-88) Opinion, entered October 5, 1988
Judgment on the Pleadings
A party seeking to recover upon a claim, counter claim, or cross claim judgment may at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for summary judgment in his favor upon all or any part thereof. Rule 12(c) of the Kosrae Rules of Civil Procedure, Webster George v Saelus Kephas (Civil Action No. 31-86) Judgment, entered September 22, 1987.
The court may entertain a complete motion for default judgment. However if no action is taken on or before 60 days after issuance of a notice, the case may be subject to dismissal for lack of effective actions. KWC v Maxson Nena (Civil Action No. 20-87) Order entered June 14, 1988.
The provisions of Rule 6(d) of the Kosrae Civil Rules of Procedure shall govern a motion for Summary judgment. The party opposing the motion must, in the same manner, observe the provisions of Rule 6(d). The judgment sought shall be rendered forthwith if the pleadings, depositions answers to interrogations, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages. Leeyone Nena v. Saimon Rental (Civil Cases No. 43-85) Order, entered January 27, 1989.
The FSM Supreme Court established the standard for summary judgment. A court must deny a motion for summary judgment unless it finds there is no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. The court must view the facts presented and inferences made in the light most favorable to the non-moving party. The burden of showing a lack of triable issues of facts belongs to the moving party. Where the facts lead to differing reasonable inferences, thus establishing a genuine issue of fact, summary judgment is not available. Adams v. Etscheit, 6 FSM Intrm. 580, 582, 583 (App. 1994). Webster George dba, Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The courts generally disfavors default judgment and readily set them aside rather than deprive a party of the opportunity to contest a claim on the merits. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
The court can deny an application for default judgment based on custom and tradition. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
The court has discretion to enter judgment of default based on plaintiff's failure to prosecute. If no action is taken on or before 30 days after the date of issuance of a notice of possible default, the court may dismissed the action pursuant to Rule 41(a) (1) of the Kosrae Civil Rules of Procedure. KWC v Inus Albert (Civil Action 21-87)???????
In order for a default motion to be granted by the clerk of Court, the plaintiff ‘s claim must be for certain or for a sum which may be made certain. In addition, an affidavit indicates the amount and the fact that the defendant is not an infant or incomplete must be filed. Rule 55 of the Kosrae State Court Rules of Civil Procedure. In all other cases, the court may grant default judgment if the motion papers are complete and satisfactory, and there is a satisfactory basis for such a judgment. In all other cases, the court may grant a default judgment if the motion papers are complete and satisfactory, and there is a satisfactory basis for such a judgment. KWC v Maxson Nena (Civil Action No. 20-87) Order entered June 14, 1988.
Pursuant to Rule 12(c) of Kosrae rule of Civil Procedure, any party may move for judgment on the pleadings after the pleading are closed but within such time as not to delay the trial. If, on a motion for judgment on the pleadings, matters outside pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary of judgment and dispose of as provided in Rule 56 of Kosrae rule of Civil Procedure. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Webster George v Saelus Kephas (Civil Action No. 31- 86 Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992).
The court may enter default judgment if after reviewing of record and file of the case and with supporting affidavits and other documents finds the party against judgment fails to plead or otherwise defend as provided by rules of this court. K.W.C v Louisa Jack Civil Action No. __Entry of Default, September 30, 1988.
The court may deny a motion for summary judgment when there are genuine issues of material fact. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 18, 1996.
In reviewing a motion to allow late opposition, the reasons for late filing must satisfy the requirement of "excusable neglect" established by Rule 6 of the Kosrae Rules of Civil Procedure. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 18, 1996.
Due Process
The Due Process Clause of the Kosrae Constitution Article II, section 1(b) reads "a person may not be deprived of life, liberty or property without due process of Law.... The exact meaning of this term is not so clear in the context of an employee case. The writers of the Kosrae Constitution used the two words "Due Process" to indicate that Kosraeans are protected from being treated unfairly or unjustly by their state government. The extent of this protection is only understandable when the legislative history of the clause is considered and when it is tested by the cases which come before this court. Due Process analysis begins with two prong tests. The first prong is whether a life, property or liberty interest is implicated; without one of these interests, the due process clause does not apply. The FSM Supreme Court determined that a property interest exist if the following facts are presented:
"To be property protected under the Constitution, the employment right must be supported by more than merely the employee’s own personal hope. There must be a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. Suldan v FSM (II) I FSM Intrm. 339, 352 (Pon. 1983). The Kosrae Court concurs that such definition is consistent with the definition of property in employment cases intended by the writers of our Constitution. The second prong of the analysis is whether any due process rights were violated. As explained in FSM Constitutional Committee notes, the issue here is whether the procedures that were used in applying the disciplinary action were fair. What is fair will depend on the circumstances of each case. The concept of fairness and justice is relative. It varies with the subject matter and the necessities of the situation. What is fair in one set of circumstances may be act of tyranny in others (SCREP no. 23, II J. Of Micro Con Con 795). In short, the FSM Supreme Court furnished that procedures which are used must be calculated to assure a fair and rational decision making process. Suldan v FSM (II) I FSM Intrm. 339, 352 (Pon. 1983, Hashime Taulung v Kosrae State (Civil Action No. 39-86) Opinion entered February 11, 1988.
Services of English -only court summons and complaints upon petitioner or any person who has limited understanding of English language, constitutes a violation of the petitioner's procedural due process right as provided in Article II (b) of the Kosrae State Constitution and Article (3) of the Constitution of FSM. Consequently, any court order of such regard will be void. Sepe Jack Mckeehan v Gary Duane Mckeenan (Civil Action 64-93) Order Granting Divorce, Child Custody, and Child Support; Findings of fact and Conclusions of law, entered April 6, 1995.
In this civil matter, the court has ruled that a Circuit Court of Dale, Alabama lacks any personal jurisdiction over petitioner and son who have never been to Alabama, nor had been domiciled or held a residence in Alabama. As a result, the Kosrae State Court will not enforce decisions or judgment made by the Circuit court of Dale, Alabama against the petitioner and her son. Sepe Jack Mckeehan v Gary Duane Mckeenan (Civil Action 64-93) Order Granting Divorce, Child Custody, and Child Support; Findings of fact and Conclusions of law, entered April 6, 1995
Attachment & Execution
Attachment is the involuntary dispossession of the defendant prior to any adjudication of the rights of the plaintiff: that is, a seizure in advance of trail and judgment. 6 Am Jur 2d at 560-561 (attachment and Garnishment, Section 1). The proper methods to attach defendant’s wages would be to bring a request for attachment of wages in the complaint. A petition for writ of attachment is subject to Kosrae State Code, Section 6. 2405. The statute provides that:
" a debt owed to defendant is subject to attachment by Court order except salary or wages which the court finds necessary for the support of the defendant or his dependants. KSC Section 6.2405 (2).
The Kosrae State Code provides for the procedure of attachment of wages. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996
The court can not order a writ of execution of sale of land if plaintiff fails to provide evidence to prove that said land is solely owned by the defendant. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
Interest in Land is exempted from attachment and execution, except that the court may order sold or transferred pursuant to an order in aid of judgment, an interest held solely by a judgment debtor in his own right if the court finds that justice requires and that after the sale or transfer the debtor would have sufficient land to support himself and those persons directly dependent on him according to custom and law. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992
An order in aid of judgment may provide for the sale of particular assets, such as unencumbered property that is not necessary for the debtor to meet his family and customary obligations. Webster George v Saelus Kephas (Civil Action No. 31-86)?????
The court examines the judgment debtor's ability to pay. Consequently, an order, which take this factor properly, will not result, in and of itself, in the financial undoing of the debtor. Webster George v Saelus Kephas (Civil Action No. 31- 86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992
Section 6. 2409 (Order in Aid of Judgment) specifically speaks to notice to defendant and subjecting defendant to an examination by the court in order to determine a just method to satisfy the depth. By implication, this statute is to allow defendant an opportunity to participate in a hearing in order to arrive at a fair and equitable remedy. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992
In Civil Procedures where defendant is absent, an adjudication affects only the property or status which is the subject of the action. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
After a judgment for the payment of money and before full satisfaction of the judgment a party may apply to the court for an order in aid of judgment. After the notice to the opposition party, the court holds a hearing on the question of debtor’s ability to pay and determines the fastest way in which the debtor can reasonably satisfy the judgment. K.C 6.2409. Charley Jim v. Moses Alik (Civil Action No. 55-88) Order Granting Application for an Order in Aid of Judgment-October 25, 1990.
The court can not order in aid of judgment forcing the sale of a property or land without an undisputed assurance of defendant's individual ownership. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
The court will not penalize defendant’s family for defendant’s unpaid debt. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
It is a Kosraen custom for one to reap the fruit of one’s misdeed. Thus there is an inherent duty on part of a lessor to repossess the leased commodity from delinquent lessee or lessor loses out on his claim. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
Creditors with judgment more than 10 days old are entitled to writs of execution upon request. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
Writs of execution will not be granted on an automatic basis, but only when it has been shown that judgment creditors have seriously explored the possibility of satisfying the judgment through other means in order to avoid bankruptcy or economic hardship. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
Garnishment
Even though there are no state and national provisions explicitly providing for garnishment, garnishment of wages is an acceptable means of enforcing on unpaid judgment. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
The court's power to issue writs of garnishment is clearly discretionary. Webster George v Saelus Kephas (Civil Action No. 31-86) Opinion and Order Denying Plaintiff’s Motion for Order In Aid of Judgment, entered December 1, 1992.
Customary Adoption and Name Change
The court has jurisdiction over matters involving customary adoption and name change by virtue of Article VI, section 6 of the Kosrae State Constitution and Section 6.3105 of the Kosrae State Code. In re Martha V. Palsis (Civil Action No. 77- 93) Decree Confirming Customary Adoption and Name Change, entered October 28, 1993.
If an adoption has occurred in accordance with tradition and its validity is in question or dispute, an interested party may file a petition under oath in the court for a decree confirming the adoption. Kanako Monkeya v. Miles Tolenoa and Totiana Miles (Civil Action No. 17-95) Writ of Habeas Corpus entered June 13, 1995.
Contract
A contract must have three factors to be valid. These three factors include 1) offer; 2) acceptance; 3) and consideration. When the three features are met then a contract is binding on all parties. Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment, entered October 31, 1996.
The objective theory of contract is "mutual assent" or agreement. Mutual assent or agreement is usually occurs when there is a process of offer and acceptance. Under the objective theory, whether there is agreement is determined by asking what a reasonable person in the position of one party would be led to believe by the words and conduct of the other party. This is usually a question of fact. If offer is a promise to do or to refrain from doing some specified thing in the future. The offer creates the power of acceptance. The acceptance creates a contract and terminates the power of revocation by the offeror. The acceptance must be a voluntary act. Contracts, Black Letter Series, West Publishing, p. 1-2. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
A contract is a promise between two parties for the future performance of mutual obligations, which the law will enforce. For the promise to be enforceable, there must an offer and an acceptance, definite terms, and consideration for the promise. When one party fails to perform their promise, there is a breach of contract. Ponape Constr. Co. v Pohnpei, 6 FSM Intrm. 114 (Pon. 1993). Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
In order for an agreement to be binding, the agreement must be definite and certain as to its terms and requirements. Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994). Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
For a promise to be enforceable under the theory of detrimental reliance, three elements must occur:
-
The promisee must suffer legal detrimental (do or promise to do what the promisee is not legally obligated to do);
-
The detrimental must induce the promise. This means that the promisor must have made the promise in exchange for the detriment to be suffered by the promisee;
3. The promise must induce the detriment. This means that the promisee must know of the offer and show an intent to accept. Contracts, Black Letter Series, West Publishing, p. 148.
Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
In the doctrine of quantum meruit, there are four essential elements of recovery; 1) valuable services were rendered; 2) for person sought to be charged; 3) which services were accepted for person sought to be charged and; 4) under such circumstances as reasonably notified person sought to be charged that plaintiff, in performing such services, was expected to be paid by person sought to be charged. This is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby; under those circumstances, the law implies a promise to pay reasonable amount for the labor furnished, even absent a specific contract therefor. Blacks’ Law Dictionary, Sixth Edition, p. 1243, Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment, entered October 31, 1996.
A claim for recovery based on the grounds of unjust enrichment is based upon common law action for quantum meruit, a form of action used for claims to payment for services. Quantum meriut is a basis for recovery where the defendant has received a benefit and it would be inequitable for him to retain it without payment. The general term of quasi-contract is also applicable, which refers to any money claim for the resolution of unjust enrichment. The restatement of restitution lays down the broad principle that a " person who has been unjustly enriched at the expense of another is required to make restitution". The person claiming restitution must have conferred a benefit of some kind on the other party. Contract by Farnsworth, Section 2.20, pages 99-100. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
The equitable doctrine of quantum meruit is a common and a tradition practice in the State of Kosrae. Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment entered October 31, 1996.
When there is no provisional remedy for a particular issue, the court may resort to remedial methods furnished in other cases that have proximal material facts and issue to the case at hand. Atchiro Melander v. John Andrew (Civil Action No.31-96 ) Judgment entered October 31, 1996.
In order to be enforceable, specific warranties in a deed must be clear and unambiguous. Sepe Frierson v Nena Kilafwasru (Civil Action No. 38-88) Opinion entered August 2, 1990.
Where fraud or mistake are involved, the court can reform or cancel a deed, but relief will be denied in either situation if the misunderstanding of the aggrieved party was caused by his unexplained failure to read the necessary documents. Sepe Frierson v Nena Kilafwasru (Civil Action No. 38-88) Opinion entered August 2, 1990Melander v Kosrae 3 FSM Intrm 324, 328 (Kos S. Ct. Tr. 1988).
A covenant cannot claim a breach of warranty where such (adverse) title is not paramount. The showing of a superior outstanding title in a third party is essential to mature the right of action for a breach of the warranty. In order words, a covenant of a warranty of title does not extend to apparent but unfounded titles in the land, but only against hostile titles, superior in fact to that of the grantor. 20 Am Jur 2d [Covenants] 56, p. 627. Sepe Frierson v Nena Kilafwasru (Civil Action No. 38-88) Opinion entered August 2, 1990
Misrepresentation is statement made by a party that a thing is in fact a particular way, when it is not so, untrue representation, false or incorrect statement. The court may rescind a contract on the basis of a material misrepresentation of the warranty deed. Sepe Frierson v Nena Kilafwasru (Civil Action No. 38-88) Opinion entered August 2, 1990.
Where a seller of land is on notice of a dispute, even though a claim causing dispute is not a lawful claim under the United States common law, and where a purchaser is physically prevented by the disputing party from obtaining possession of the property, and the seller has expressly claimed that the property is free from dispute, a duty arises in the seller to inform the purchaser of the dispute. Failure by seller to do so is a misrepresentation, which if relied upon the purchaser to his/her detriment, allows and entitles the purchaser to void and rescind the contract. Sepe Frierson v Nena Kilafwasru (Civil Action No.38-88 Opinion entered August 2, 1990).
A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognize as a duty. 17 Am Jur 2d Contract (1). Melander T. Melander v Boaz T. Sam & Dorothy Jackson (Civil Action No. 21-95) Judgment and Order- February 25, 1998.
Breach is a defined as a failure without legal excuse to perform any promise that forms a whole or a part of a contract. 17 Am Jur 2d Contract. (716). Melander T. Melander v Boaz T. Sam & Dorothy Jackson (Civil Action No. 21-95) Judgment and Order- February 25, 1998.
When there is a strong moral and legal obligation in a contract, a party can not excuse from his duty of performance by the mere encounters of difficulty and expenses. Each case must be judged by its own circumstances. In such case, one must look at the nature of the contract and whether both parties entered into with their full knowledge and understanding. KICU v Rison Wakuk (Civil Action No. 68-88) Opinion-May 23, 1990
When two parties entered an agreement, a duty is warranted for both parties to comply with the terms of the agreement. Both parties may not amend the terms of agreement without the approval or the consent of the other party. Heirs of Yamada Noda v Gerson Mongkeya (Civil Action No. 52-88) Judgment-February 19, 1995
The Statute, 61 T.T.C 10(15) (a) provides that "no single suspension for a period of three working days or more, whether consecutively or not, shall take effect unless the management official gives the employee a written notice setting forth the specific reasons upon which the suspension is based and files a copy of the statement with the director". Hashime Taulung v Kosrae State (Civil Action No. 39-86) Opinion entered February 11, 1988.
The court in, Jim v Alik 4 FSM Intrm 199(Kos. S. Ct Tr. 1989 addressed the issue of contract definiteness. This case involved the sale of a van in installments. The parties had not stated the terms of payment, and the court could not determine who was in breach of contract. Thus the Court rendered where an agreement between the parties is too vague and uncertain that the court cannot determine who is the breaching party, or cannot fashion a remedy to enforce the agreement, there is no contract. Vernon Youngstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992.
It is a well-established principle that courts should avoid unnecessary constitutional adjudication. If a dispute can be fully resolved on statutory or other grounds without reaching potential constitutional issues and without disserving constitutional principles, the court should do so. FSM v. Edwards 3 Intrm 224, 230 (Pon.1987), Vernon Youngstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992.
In interpreting a contract, the court should free be to look to all relevant circumstances surrounding the transaction. The court may consider the prior negotiations, even if they show that both parties attached to the contract language a meaning different from one that would ordinarily be given. Vernon Youngstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992
Restitution
Restitution is a remedy, which returns the benefits already received by a party to the party who gave them where the court can find no contract. Jim v. Alik, 4 FSM Intrm. 199 (Kos. 1989). Restitution has been defined as not only the restoration of giving back of something to its rightful owner, but also compensation, reimbursement, indemnification or reparation for the benefits derived from, or for loss of injury caused to another. Jim v. Alik, FSM Intrm. at 201, citing to 66 Am Jur. 2d Restitution and Implied Contracts, Section 1. Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment and Opinion on Damages, entered March 3, 1997.
The proper measure of recovery in an action based on restitution is the reasonable value of goods or services furnished to the benefited defendant. The primary aim of restitution is to restore the plaintiff to the position he occupied before the defendant received the benefit. 66 Am Jur 2d Restitution and Implied Contracts, Section 166. Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment and Opinion on Damages, entered March 11, 97.
Unjust Enrichment
The doctrine of unjust enrichment applies where there is an unenforceable contract, and requires a party to either return what has been received under the contract or pay the other party for it. The unjust enrichment doctrine is based upon the idea that no one person should be permitted to unjustly enriches himself at the expense of another. Etscheit v Adams, 6 FSM Intrm. 365, 392 (Pon 1994), Atchiro Melander v. John Andrew (Civil Action No. 31-96) Judgment and Opinion, entered March 11, 1997.
The equitable doctrine of unjust enrichment allows an aggrieved party to recover a benefit that was conferred upon another party that is unfair for the party to retain that benefit. VernonYoungstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992
The doctrine of unjust enrichment has been expanded to cover cases where there is implied contract, but a benefit officiously thrust upon one is not considered an unjust enrichment and restitution is denied in such cases. Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994). The term "officious" means volunteering one’s services where they are neither asked nor needed. Webster’s Ninth New Collegiate Dictionary, page 820. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
Conversion
Conversion is an intentional exercise of dominion or control over a tangible item that seriously interferes with the plaintiff’s right to control that item. The only intent required for the tort of conversion is an intent to exercise dominion or control over the item. A conversion may occur when the defendant (1) acquires, (2) moves the item, (3) makes an unauthorized transfer, delivery, or disposal, (4) withholds possession, (5) destroys or materially alters the item, or (6) under certain circumstances, merely uses the item. Damages for the tort of conversion include the full value of the item at the time of conversion. Torts, Black Letter Series, West Publishing, pages 117-118. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
Promissory Estoppel
In order for a promissory estoppel to apply, there must be an assertion of fact, with intent to induce reliance by the other party on the fact, which does produce such reliance to the detriment of the other party such that it is unfair to be heard to deny the existence of the fact. Willer Thomas v Gerson Jackson et. al. (Civil Action No. 37-91) Opinion, May 6, 1992, p. 2., Vernon Youngstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992.
Writ of Habeas Corpus
The court will not accept a petition for Writ of Habeas Corpus if the petition carries errors that could have been avoided. Mark Lonno v Kosrae State (Civil Action No. 63-93) Order entered August 31, 1993.
A petition for a writ of Habeas Corpus must meet the requirements as provided by Section 6.3402 of the Kosrae Code. Mark Lonno v Kosrae State (Civil Action No. 63-93) Order entered August 31, 1993.
Under Kosraen law, Chapter 34 of Title 6 of the Kosrae Code governs writs of habeas corpus.
Trespass
There can be no trespass where the possessor consents. VernonYoungstrom v Kosrae State (Civil Action No. 30-89) Judgment and Opinion entered August 5, 1992.
Writ of Prohibition
The purpose of Writ of Prohibition is to prevent an inferior court from acting without jurisdiction or to prevent an inferior court from acting in excess of its powers. Wibar Obet v Kosrae State and Executive Service Appeal Board (Civil Action No. 34-88) Opinion, entered September 27,1988.
In order for the court to issue a writ of Prohibition the following factors must be present: 1) that some court, officer or person is about to exercise judicial or quasi-judicial powers; 2) that the exercise of such power is unauthorized by law; and 3) that it will result in injury for which there is no other adequate remedy. It is therefore compulsory that all 3 elements are given. Failure to establish just one of these three factors will render a petition for writ of Prohibition void. Wibar Obet v Kosrae State and Executive Service Appeal Board (Civil Action No. 34-88) Opinion, entered September 27,1988.
Administrative
KC 5.241(1) provides that the Kosrae Executive Service Board hears appeal within fifteen days of Director’s receipt of a notice of appeal unless the employee requests a delay. The court rules that the board does not loose its jurisdiction when the fifteen-day requirement is infringed based on the following judicial interpretation: 1) if a statute merely requires that certain things be done without prescribing the consequences of failure to comply, then the language of statute is directory in character and not enforceable by the courts; 2) the fifteen-day requirement indicates the legislature’s interest in having the appeals resolved expeditiously. As a practical matter, if the board loses its jurisdiction after the fifteen days, the employee will resort to court for solution in which will only prolong the process and defeat the purpose of the statute; 3) the creation of the Executive Service Board indicates the legislature’s interest in furnishing an alternative forum to the court for resolving employment complaints. The board would not be a viable forum if it could easily lose its jurisdiction. For all of these reasons, the court finds that the fifteen-day requirement is not jurisdictional and that the board has lawful authority to hear appeals even when the fifteen-day requirement is infringed. Wibar Obet v Kosrae State and Executive Service Appeal Board (Civil Action No. 34-88) Opinion, entered September 27,1988.
Kosrae Code Section 5.421(2) provides the court’s standard of review for appeals of Executive Service Appeals Board decisions. The court can overturn or modify the board’s decision only if it finds a violation of law or regulation. This standard precludes this court from re-weighing factual determinations made by the board. If there is any factual basis for the board’s decision, it will be upheld, assuming no other violation of law or regulation. Pilika Palik v Executive Service Appeals Board (Civil Action No. 14B-87) Opinion entered May 11, 1990.
Section 5. 42 of the Kosrae Code specifically authorize the Executive Service Appeals Board to subpoena witnesses on its own motion. Pilika Palik v Executive Service Appeals Board (Civil Action No. 14B-87) Opinion entered May 11, 1990.
Foreign Judgment
A judgment of a foreign court will be considered lack of personal jurisdiction when it is established that the person or persons against judgment have never been to the foreign state or country in which the judgment was issued. As a result, the court will not enforce in the State of Kosrae judgment of such regard. Sepe Jack McKeehan v Gary Duane Mckeehan. (Civil Action No. 64-93) Order Granting Divorce, Child Custody and Child Support; Findings of fact and Conclusions of law, entered April 6, 1995.
Litigation
A court can refuse to hear a case, even though it has jurisdiction, if the plaintiff does not have standing. Standing is a personal stake in the outcome of the litigation. The FSM Supreme Court has stated "the controversy must be definite and concrete, touching the legal relations of the parties having adverse interests". Ponape Chamber of Commerce v. Nett Municipal Government 1 FSM Intrm 389, 401 (Pon. 1984). . Allison Benjamin v Kosrae State (Civil Action No. 19-85) Opinion & Order Denying Summary Judgment, October 26, 1985.
Statute of Limitation
In action brought before the court to recover the balance due upon a mutual and open account, or in an action in which there has been partial payment, the cause of action accrues at the proven time of the last item in the account. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Appeal
A party’s failure to file a timely reply brief may be deemed a consent to a appeal, however, proper grounds for the appeal must still exist before the court can consider the appeal. Bank of Guam v Nukuto, 6 FSM Intrm 615 (Chk. 1994), Winston Killin v Sepe Andrew, (Civil Action No. 49-93) Kosrae State Court Order- January 7, 1988.
According to Kosrae Rules of Appellate Procedure, Rule 28, and a party’s brief requires a statement of issues presented for review, and a conclusion stating the precise relief sought. Rule 28(a) and (e) requires that arguments in a brief contain citations to the authorities, statutes and parts of the record relied on. McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993), Winston Killin v Sepe Andrew, (Civil Action No. 49-93) Kosrae State Court Order- January 7, 1988.
Compliance with the Kosrae Rules of Appellate Procedure is expected in appeals from decisions made by the Kosrae State Land Commission. Winston Killin v Sepe Andrew, (Civil Action No. 49-93) Order- January 7, 1988.
The opportunity to appeal the inferior court's decision is generally considered an adequate remedy that will defeat the issuance of a writ of Prohibition. However, when the appellate courts has discretion to refuse the appeal or when the appellate process is so burdensome that it is not realistic remedy, than a writ may be issued. Wibar Obet v Kosrae State and Executive Service Appeal Board (Civil Action No. 34-88) Opinion, entered September 27,1988.
The state court does not have the right to refuse to hear appeal. Wibar Obet v Kosrae State and Executive Service Appeal Board (Civil Action No. 34-88) Opinion, entered September 27,1988.
By virtue of Section 11.614 of the Kosrae State Code, the court is empowered to hear appeals on records, unless it finds that good cause exist for trial on the matter. Likiak Tulenkun v Clanry Tilfas (82-93) Opinion entered October 21, 1994.
Enlargement of Time
Pursuant to Kosrae Rules of Appellate Procedure, Rule 26(b), the Court may grant an extension of time for good cause. The court is given broad discretion to enlarge the time upon showing of good cause. Kimoul v. FSM, 4 Intrm. 344 (App. 1990), In Kosrae State, Civil Action No. 49-93 Winston Killin v Sepe Andrew (Order- January 7, 1988)
Excusable Neglect
The court for cause shown may at any time in its discretion upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. KRCP 6(b). Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Excusable neglect means "a failure to take the proper steps at the proper time, not in consequences of the party’s own carelessness, inattention, or willful disregard of the process of the court, but in consequences of some unexpected or unavoidable hindrance or accident". Black’s Law Dictionary, 6th Ed., page 566. Examples of Excusable neglect may be the following: the agent was sick and unable to file the pleading or there was a delay in mail delivery and the pleading arrive late in Kosrae after the filing dateline. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Taxation
State Law 4-88, which amended the Kosrae State Code to create an Airport Utilization Fee to be imposed on passengers departing Kosrae International Airport. All outgoing passengers pay the fee. A passenger does not have the right to depart from Kosrae International Airport until the Director receives the Fee. The Director may provide, by regulation, procedures for the efficient collection and handling of the fee, including the imposition of fines not to exceed $50.00 for the failure or refusal of any passenger to pay the Airport Utilization Fee. Tafunsak Municipality v. Kosrae State (Civil Action No. 57-91) Order of Dismissal-July 16, 1992.
The Airport Utilization Fee is not a State tax for purpose of revenue sharing under Article IX (2). Tafunsak Municipality v. Kosrae State (Civil Action No. 57-91) Order of Dismissal-July 16, 1992.
A tax is a contribution, charge or burden placed upon a person by legislation to make a voluntary payment to the government. It is imposed to support the government in return for advantages and protection the government affords the taxpayer and his property. Taxes raise revenue and also serve regulatory purposes. A tax classification is based on which the tax is laid or the purpose for which it is imposed. The State has wide discretion in selecting and classifying subjects of taxation. Tafunsak Municipality v. Kosrae State (Civil Action No. 57-91) Order of Dismissal-July 16, 1992.
Voluntary payments to the government in the form of business license fees, medical fees, utility charges, fees for the use of seaport or airport facilities are means used by the government to raise revenues other than through taxation. Id. Journ. Kos. Con. Con. At 509, 510. Clearly the framers of the Kosrae State Constitution foresaw the use of the departure fee as a means of raising revenue for the government outside of the government’s power to tax. Tafunsak Municipality v. Kosrae State (Civil Action No. 57-91) Order of Dismissal-July 16, 1992.
Guardians of Personal Property
The court has jurisdiction to hear petitions for guardians of personal property by virtue of Article VI, section 6 of the Kosrae State Constitution. In re: Elina Y. Fred (Civil Action No. 35-95). Order Appointing Metson Y. Fred and Maggie M. Fred as Guardian of Elina Y. Fred’s property-October 4, 1995.
Any person who has interest and is against a petitioner being appointed as guardian of property may serve on the petitioner counsel and answer to the filed petition or otherwise appear and defend as provided under the Kosrae State Court, Rules of Civil Procedure within 20 days of the posting of a notice of petitioner’s claim. Failure to do so, the court may proceed and appoint petitioner as the legal guardian. In re: Jeancia L. Kephas & Kenye L. Kephas (Civil Action No. 38-95) Notice-July 4, 1995.
Court’s Decision
According Article VI Section 9 of the Kosrae Constitution, court’s decision must be consistent with the Constitution, customs, traditions and social configuration. The intention and the purpose of this provision is to furnish the laws of the country to be consistent and not in contravention to the interest of the people of Kosrae. The advantage of this provision is it precludes reservation to foreign precedents that may not consistent to the way of living of the Kosraen people. Heirs of Yamada Noda v Gerson Mongkeya (Civil Action No. 52-88) Judgment-February 19, 1995.
Divorce
The court has jurisdiction over actions for divorce and child custody by virtue of Kosrae State Code Section 6.3201 and 6.3202. Carmelita Wakuk v. Asakiah Jim (Civil Action No. 9-85) Decree-January 6, 1986.
Relief from Judgment or Order
Rule 60(a) of the Kosrae Rules of Civil Procedure grants the court the authority to correct, at any time of its own initiatives or on the motion of any party, clerical mistakes in judgment, orders or other parts of the record and errors therein arising from oversight or omission. In re: Robson Joshua Alokoa (Civil Action No. 31-88) Order Amending Decree entered July 8, 1988.
Legal Practice
No person, except on his own behalf, shall appear this court unless he has been admitted to practice in accordance with the Kosrae State Court Rules of Procedure. Rule I of the GCO 1996-1. The court will deem any filing by persons of such reference as improper filing, thus unacceptable according to the rules. Derhius Ned v Tafunsak Municipal Government (Civil Action No. 60-95) Order entered January 29, 1988.
Ethical Conducts
A presiding judge may disqualify himself pursuant to Canon 3 E (1) of the Model Code of Judicial Conduct, which states: "a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned".
Violations of the Model Rules of Professional Conduct are subject to disciplinary action under GCO 1996-1. Kosrae State Civil Action No. 49-93 Winston Killin v Sepe Andrew (Order- January 7, 1988).
All counsels are required to adhere to the ABA Code of Professional Responsibility. GCO 1985-5. Counsel before the FSM Supreme Court is required to adhere to the ABA Model Rules of Professional Conduct. FSM S. Ct. GCO 1983-2. The ABA Code and the Rules of Professional Responsibility require candor toward the tribunal. Rule 3.3 specifically states:
"A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel..." Model Rules of Professional Conduct. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996
Inadvertence
Inadvertence means "lack of attention, carelessness, failure of a person to pay careful prudent attention to the progress of a negotiation or a proceeding in court". Black’s Law Dictionary, 6th Ed. Page 759. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Failure to file a timely opposition to a motion is deemed a consent to the granting of the motion under KRCP, Rule 6(d). However proper grounds for the granting of the motion must still exist before the court may grant the it. Senda v. Mid-Pacific Construction Co., 6 FSM Intrm. 440 (App. 1994). Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Mutual and Open Account
In action brought before the court to recover the balance due upon a mutual and open account, or in an action in which there has been partial payment, the cause of action accrues at the proven time of the last item in the account. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Since there is no FSM or Kosrae authority, which discusses generally the existence and discretion of mutual and open accounts, this court may look to US laws for guidance. Such is appropriate since the applicable Kosrae State Code provision was based upon FSM law, which was based upon the then-existing Trust Territory and US law. In action brought before the court to recover the balance due upon a mutual and open account, or in an action in which there has been partial payment, the cause of action accrues at the proven time of the last item in the account. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
A mutual account is an open account where there are items debited and credited on both sides of the account, rather than simply a series of transaction always resulting in a debit to one party and a credit to the other party; each party to a mutual account both occupies both a debtor and creditor relation with regard to the other party. In some cases, an account may not be considered mutual if all items are on one side. 1 Am Jur 2d. At 564, Accounts and Accounting, Section 6. The statute of limitation for mutual account runs from the date of the last item of the account, although an action might have been maintained on any of the items separately. Williston on Contracts, 3d. Ed., Vol. 18, Section 2030, p. 817. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
An open account is an account with a balance that has not been ascertained, and which is kept open in anticipation for future transaction. . 1 Am Jur 2d. At 562, (Accounts and Accounting, Section 4). An open account is said to be running or current where it continues with no time limitations fixed by either express or implied agreement. An account is generally not considered running or current for purposes of statute of limitations, unless there has been items on both sides within the statutory period. Id section 5. Market v. Peleliu Club 6 TRR 458 (1974).
Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
In an action brought to recover the balance due upon a mutual account, the cause of action is deemed accrue, and the statute of limitations begins to run at the time of the last item proved in the account, on either side. The " last item " within this rule must arise from the mutual act and consent of both parties, with the understanding, express or implied, that it is enter into and become a part of their mutual dealing or account, and is the subject of future adjustment in ascertaining the general balance due on the account. 1 Am Jur 2d. at 581 (Account and Accounting, section 23) (emphasis added). Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The Us doctrine of setoff of debt is essentially an equitable doctrine requiring that the demands of mutually indebted parties be set off against each other and that only the balance be recovered in a judicial proceeding by one party against the other. 20 Am Jur 2d. at 232 (Counterclaim, recoupment and setoff, section 6). Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The right of setoff is an exercisable right, and until the right is exercised, either party may do as he or she pleases hi s or her property. Set off is usually the result of judicial proceedings in which both parties become actors and is accomplished only by judicial action. 20 Am Jur 2d. at 233. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
US law grants banks the right to setoff a debt when the debtor is indebted to the bank and the debts are mutual. 68 ALR. 3d. 192, Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Generally, a setoff must rest on a claim enforceable in its own right. Thus, an obligation that is not enforceable in an action at law cannot be set off against an opposing claim. 20 Am Jur. 2d. at 234, Section 7. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
In applying the doctrine of setoff in Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96), the right to assert setoff can be asserted only by the defendant. If defendant had chosen to setoff plaintiff’s claim by the wages due him, defendant would have filed a counterclaim to apply the doctrine of setoff or asserted setoff as an affirmative defense. Plaintiff may not use defendant’s right of setoff. A defendant’s claim to set off against the plaintiff’s claim must have been capable of being maintained in suit against the plaintiff at the commencement of the plaintiff’s action. 20 Am Jur 2d at 238, Section 14. Defendant’s right to use his unpaid wages, as setoff to plaintiff’s claim would have been permissible within the statute of limitations of 6 years at the outset of his suit. However, the statute of limitations now bars defendant’s application of setoff against the plaintiff. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
A court has inherent power to allow or compel a setoff when equity and justice so demands. The right of setoff itself is essential an equitable right, which courts may enforce at their discretion, Id at 236, Section 11. The failure to allege setoff as an affirmative defense can bar the defense of setoff in the same manner as any other waiver of an affirmative defense by the failure to plead it. 20 Am Jur 2d. at 305, Section 104. In the particular case of Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96), defendant failed to plead setoff as a defense. If defendant would have plead the defense of setoff, the court would have equitable power to enforce the setoff. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Deductions, Debts, Wages, & Salary
The FSM Code provides authority for an employer to make certain deductions from an employee’s wages. The deductions authorized from an employee’s wages are social security contributions under Title 53, Chapter 9, taxation of wages and salaries under Title 54, Chapter 1, subchapter III, and health insurance premiums for the National Health Insurance Plan under Title 52, Chapter 4. No other deductions from an employee’s wages are authorized under FSM law. The court could not find any statutory authority under the Kosrae State Code that requires or allows other deductions from an employee’s wages. Title 5 provided some guidance on employment of individuals in the executive department and sets out an employee’s right in detail. Generally the KSC executive service provisions provide for due process hearings and appeal in taking actions adverse to an employee. The KSC does not authorize the state government to withhold or use a person’s wages to setoff a debt to the government. Thus the court looked to US law for guidance to determine adjudication. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Generally, US law authority permits employer to deduct from employee’s wages the reasonable value of board, lodging, or other facilities, only if the employee is told of the value of facilities being deducted from their wages and the employee’s acceptance of the wages deduction is voluntary. Employment Law, Practitioner Treaties Series, Vol. 1 (Wages, Hours, and Benefits, p. 341). The deduction in the case of Webster George d.b.a., Webster George & Co. vs. Lydon Nena was neither authorized by law nor authorized in writing or verbally by defendant. Plaintiff’s action was not authorized and was an improper deduction of defendant’s wages. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The court could not find any Kosrae or FSM law regulating the payment of wages to terminated persons. A standard of reasonableness would suggest that an employer would hold on to a terminated employee’s final unpaid wages for a minimum of a few months. This would allow a terminated employee who is sick or off-island adequate time to claim his final wages. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
KSC Section 6.2508 as the appropriate limitations for mutual and open account. This provision s is based upon a 6 TTC, Section 307 and is also based on the FSM Code, Title 6, Section 807. Since all three provisions have very similar language, it is appropriate to look at FSM and Trust Territory cases interpreting them. Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The Appellate Court stated the rule concerning the revival of a debt barred by the statute of limitations as follows:
"an acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part. 7 TTR at 366 (citation omitted).
As a public policy matter, there is an expectation that if the employer makes unauthorized deductions from employee’s pay, then the employer will make the payment to the appropriate authority. This policy applies to national income tax deductions, Social Security deductions, health insurance deductions and loan payments. Once the employer has made the deduction from the employee’s wages, either pursuant to law or otherwise authorized by the employee, the employer has a duty to pay out those deductions to the appropriate party. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
Case Citation as Authority
If a case is cited to this court as authority for proposition of law, it is counsel’s responsibility to research whether the case is still "good law" or whether it has been overturned, modified or reversed on appeal by an appellate court.
Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Statute of Limitation
The court held that the statute of limitations begins to run on an action for the collection of unpaid stock subscriptions when either:
-
the stock subscription specifies the date of payment, including in installments, or
-
where the stock subscription is silent as to the date and term of payment, the payments do not become due until a call has been issued by the corporation. Creditors of Mid-Pacific Construction Co. v. Senda, 4 FSM Intrm. 157 (Pon. 1989),
The FSM Supreme Court has also addressed the application of statute of limitation with respect to installment contracts. Where a note is payable in installments, each installment is a distinct action and the statute of limitations begins to run against each installments from the time it becomes due, that is, from the time when an action might be brought to recover it. Waguk v. Kosrae island Credit Union, 6 FSM Intrm. 14,17 (App. 1993),
Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
The policy of enforcing a statute of limitation is well established. The primary purpose of statute of limitations is to compel the exercise of a right of action within reasonable time so that the opposing party has a fair opportunity to defend. Statutes of limitation are design to prevent undue delay in bringing a suit on a claim and to suppress fraudulent and stale claims from asserted…The purpose of a limitation upon the time within which an action may be commenced is to ensure repose and to require that claims be advanced while the evidence to rebut them are still fresh. 51 Am Jur 2d. at 612 (Limitation of Actions, Section 17). Where a time requirement has been statutorily established, the court is without jurisdiction to hear the action unless it is filed within the time period prescribed by statute. By comparison, time requirements set by court rules are more subject to relaxation than are those established by statute. Charley v. Cornelius, 5 Intrm. 316 ( Kos. S.Ct. App. 1992), Webster George d.b.a., Webster George & Co. vs. Lydon Nena (Civil Action No. 41-96) Opinion and Ruling entered September 19, 1996.
Employment Verification Form
The employment verification form is not a guarantee of continued employee. The court will not support that a person rely upon the employment verification form as mean of guarantee employment thus rendering the employee a notion to hold the employer responsible for loan defaults when employee either quit or got fired from his/her job. Caryula Esau, ET AL. v Kosrae Farmers Cooperative Association (Civil Action No. 82-96) Opinion and Judgment entered January 30, 1997.
Procedure
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the actions; it may order all the actions consolidated; it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Rule 42(a) Rules of Civil Procedure. Ned Nithan, Raymond Sigrah, Raynold Seymour v. Black Construction Co. (Civil Action No. 61-92, 62-92, 63-92) Judgment and Order of Dismissal with Prejudice entered July 25, 1996.
Before any party can show or appear in court on their behalf, proper service is required. Rule 5(b) of the Court’s Rule of Civil Procedure. Ned Nithan, Raymond Sigrah, Raynold Seymour v. Black Construction Co. (Civil Action No. 61-92, 62-92, 63-92) Judgment and Order of Dismissal with Prejudice entered July 25, 1996.