KOSRAE STATE COURT TRIAL DIVISION
Cite as Esau v. Malem Mun. Gov’t
12 FSM Intrm. 433 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 433]

STEPHINE ESAU,
Plaintiff,
 
vs.
 
MALEM MUNICIPAL GOVERNMENT,
Defendant.
 
SMALL CLAIM NO. 19-04
 
MEMORANDUM OF DECISION; JUDGMENT
 
Yosiwo P. George
Chief Justice
 
Hearing: March 25, 2004
Decided: April 8, 2004

APPEARANCES:

For the Plaintiff:                Lyndon L. Cornelius
                                          Micronesian Legal Services Corporation
                                          P.O. Box 38
                                          Lelu, Kosrae FM 96944
 
For the Defendant:          Mayor Nena Kilafwasru
                                          Malem, Kosrae FM 96944

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HEADNOTES

Contracts
      An MOU that contains promises between two parties for the performance of mutual obligations is a legally binding, enforceable contract. Esau v. Malem Mun. Gov’t, 12 FSM Intrm. 433, 435 (Kos. S. Ct. Tr. 2004).
 
Contracts ) Interpretation
     Contracts frequently do not specify the time of performance and courts routinely decide what is a "reasonable time" for performance in those cases. Therefore, if the timing of a party’s performance under a contract is in dispute, it is the court’s duty to determine what is a "reasonable time" for performance. Esau v. Malem Mun. Gov’t, 12 FSM Intrm. 433, 435 (Kos. S. Ct. Tr. 2004).
 
Contracts ) Implied Contract; Remedies ) Quantum Meruit; Remedies ) Restitution
     The doctrine of unjust enrichment only applies where there is no enforceable contract; the doctrine of restitution may not be applied where there is a contract; and the doctrines of implied contract and quantum meruit do not apply where there is an enforceable written contract. Esau v. Malem Mun. Gov’t, 12 FSM Intrm. 433, 436 (Kos. S. Ct. Tr. 2004).
 
[12 FSM Intrm. 434]
 
Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     When the plaintiff’s letter specified that the defendant was given until March 31, 2004 to complete its remaining obligation to fill, spread and compact fill on the plaintiff’s land, or face legal action and when despite the letter’s deadline, the plaintiff did not wait to take legal action, but on February 25, 2004, only seven days after the letter’s date, the plaintiff, through his counsel, filed a small claim, the plaintiff’s failure to wait until the end of March 2004 to take legal action, contrary to his February 18 letter, raises the issue of the plaintiff’s and his counsel’s good faith. Counsel, in compliance with the Model Rules of Professional Conduct, is expected to abide by his own offers made on his client’s behalf. Esau v. Malem Mun. Gov’t, 12 FSM Intrm. 433, 436 (Kos. S. Ct. Tr. 2004).
 
Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     Good faith conduct is expected in matters filed in the Kosrae State Court. Esau v. Malem Mun. Gov’t, 12 FSM Intrm. 433, 436 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     The continued hearing on this small claim was held on April 8, 2004. Lyndon Cornelius, MLSC, appeared for the Plaintiff. Mayor Nena Kilafwasru appeared on behalf of the Defendant. At the hearing, the Court heard from both parties and received documentary evidence in support of the claim.

     Based upon the information provided to the Court at the hearing and at the site visit conducted in March 2004, the documents submitted by the parties and the file in this matter, and application of law, I make the following findings and conclusions.

I. Findings of Fact.

     Plaintiff is the fee simple owner of parcel 020-M-01. The Certificate of Title for parcel 020-M-01, also called Pual, was issued to Stephine Tilfas, also called Stephine Esau, in June 1998. In October 2002, the parties reached an agreement whereby the Plaintiff was to provide use of his land, parcel 020-M-01, to the Defendant, for use as a dumpsite. The agreement was reduced to writing and on October 8, 2002, the written Memorandum ("MOU") was executed by the Plaintiff and by former Mayor Maheta Kilafwasru, on behalf of the Defendant.

     The MOU states the obligations of each party. The Plaintiff agreed to provide his land to the Defendant for use as a dump. The Defendant agreed, that after completion of use of the land, the Defendant would place necessary fill on the dumpsite, spread and compact the fill. There was no deadline or time limit for the Defendant’s activities specified in the MOU. There is no dispute regarding the written agreement or the obligation of the Defendants to fill, spread and compact the fill on Plaintiff’s land, after completing use of the land as a dumpsite.

     A permit was issued by the Development Review Board ("DRC") for use of a portion of parcel 020-M-01 as a dump. For approximately one year, the Defendant used the portion of parcel 020-M-01 permitted by the DRC, as a dump (Area 3). The Defendant’s dumping activities went beyond the permitted area, and included a portion of parcel 019-M-10 to the north (Area 2) and untitled land to the west (Area 1). Areas 1 and 2 are not owned by the Plaintiff.

     In late 2003, the Defendant began winding down use of the Plaintiff’s land as a dumpsite. In

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late 2003, the Defendant, who does not own any heavy equipment, arranged for the Kosrae State Department of Public Works to bring fill to the dumpsite. The Department of Public Works delivered ten loads of fill material to the dumpsite, and spread some of the fill in late 2003. There was no fill, spread or compact work completed by the Department of Public Works thereafter.

     Plaintiff grew impatient with the Defendant’s lack of progress in providing fill, spread and compacting on the dumpsite. Defendant had relied upon the State Department of Public Works to complete this work, which was delayed due to equipment problems and bad weather. Mayor Nena Kilafwasru conveyed these problems to the Plaintiff directly. On February 18, 2004, Plaintiff, through counsel, wrote a letter to the Defendant, demanding that Defendant complete the fill, spread and compacting of the dumpsite by March 31, 2004. The letter stated that if the work was not completed by March 31, 2004, litigation would be required.

     Although the letter of February 18, 2004 from the Plaintiff gave the Defendant until March 31, 2004 to complete the remaining tasks, the Plaintiff did not wait until the end of March to take further actions. On February 25, 2004, the Plaintiff filed this small claim, for the amount of $122.50. The claim was made for reimbursement of the costs of spreading the fill left by Public Works in late 2003, and for hauling of one load. The spreading and hauling was completed by White Sands Company, sometime before February 26, 2004. The spreading work completed by White Sands Company included Area 3, which is owned by the Plaintiff, and also Areas 1 and 2, which are not owned by the Plaintiff. The receipt for the spreading and hauling activities, in the amount of $120.00, is dated February 26, 2004.

II. Legal Analysis.

     Plaintiff claims reimbursement of the $120.00 fee charged by White Sands Company for hauling one load and spreading the fill left by Public Works. Plaintiff claims that the contract "MOU" between the parties requires the Defendant to pay for the White Sands invoice. This Court has carefully reviewed the MOU executed by the parties. The MOU requires the Defendant to complete certain tasks after finishing use of the land as a dumpsite: provide necessary fill, spread and compact the fill. The MOU does not require the Defendant to pay or reimburse the Plaintiff for completing those tasks. The MOU does not include any other promises or obligations of the parties.

     The parties agree that the MOU is an enforceable contract. The Plaintiff agreed to provide his land, parcel 020-M-01, for use as a dumpsite by the Defendant. The Defendant agreed to provide necessary fill, spread and compacting activities for the site after dumping activities were completed. The MOU contains promises between the two parties for the performance of mutual obligations. The MOU is a legally binding, enforceable contract. Tulensru v. Utwe, 9 FSM Intrm. 95 (Kos. S. Ct. Tr. 1999); Malem v. Kosrae, 9 FSM Intrm. 233 (Kos. S. Ct. Tr. 1999).

     The MOU does not contain any deadlines or time limits for the Defendant to complete the fill, spread and compacting activities. Contracts frequently do not specify the time of performance and courts routinely decide what is a "reasonable time" for performance in those cases. Iriarte v. Micronesian Developers, Inc., 6 FSM Intrm. 332, 335 (Pon. 1994). Therefore, if the timing of performance for a party under a contract is in dispute, it is the Court’s duty to determine what is a "reasonable time" for performance. See James v. Lelu Town, 10 FSM Intrm. 648 (Kos. S. Ct. Tr. 2002). Accordingly, the Plaintiff could have requested this Court to enforce the terms of the MOU and set a reasonable time for the Defendant’s performance. The Plaintiff did not do so.

     The Plaintiff has failed to prove that the terms of the MOU require the Defendant to reimburse Plaintiff for the $120.00 fee charged by White Sands. The Plaintiff has failed to prove that the terms

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of the MOU require the Defendant to pay the White Sands fee. There is no contractual basis upon which to hold the Defendant liable for the White Sands fee. The Defendant is not liable for reimbursement or payment of the $120.00 fee charged by White Sands.

     There is no other basis upon which Plaintiff may recover the White Sands fee from the Defendant. The doctrine of unjust enrichment only applies where there is no unenforceable contract. Etscheit v. Adams, 6 FSM Intrm. 365 (Pon. 1994). The doctrine of restitution may not be applied where there is a contract. Jim v. Alik, 4 FSM Intrm. 198 (Kos. S. Ct. Tr. 1989). The doctrines of implied contract and quantum meruit do not apply where there is an enforceable written contract. E.M. Chen & Assoc. v. Pohnpei Port Auth., 9 FSM Intrm. 551 (Pon. 2000). The doctrines of unjust enrichment, restitution, implied contract and quantum meruit are not applicable here, as the MOU is an enforceable contract between the parties.

     Accordingly, the Plaintiff’s claim is denied. Judgment shall be entered in favor of the Defendant.

III. Good Faith

     Finally, Plaintiff’s conduct raises the question of his good faith in this matter. Plaintiff, through his counsel, wrote a letter to the Defendant on February 18, 2004. The letter specified that the Defendant was given until March 31, 2004 to complete its remaining obligation to fill, spread and compact fill on the Plaintiff’s land, or face legal action. Despite the deadline in the letter, which gave the Defendant approximately six weeks to complete the tasks, the Plaintiff did not wait until the end of March to take legal action. On February 25, 2004, only seven days after the date of the letter, the Plaintiff, through his counsel, filed this small claim, for the amount of $122.50. Plaintiff’s failure to wait until the end of March 2004 to take legal action, contrary to his letter of February 18, raises the issue of good faith of Plaintiff and his counsel. Counsel, in compliance with the Model Rules of Professional Conduct, is expected to abide by his own offers made on behalf of his client. In this case, the Model Rules and the doctrine of good faith required the Plaintiff to wait until the deadline given in the February 18 letter before filing this small claim. See Kos. MRPC R. 2.1, 4.4. Parties are reminded that good faith conduct is expected in matters filed in this Court.

IV. Judgment.

     Judgment is entered in favor of the Defendant and against the Plaintiff.

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