THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as House of Travel v. Neth ,
6 FSM Intrm. 402 (Pohnpei 1994)

[6 FSM Intrm. 402]

HOUSE OF TRAVEL and
RAUL MIRALLES,
Plaintiffs,

vs.

SHELTEN NETH,
Defendant.

CIVIL ACTION NO. 1994-011

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Decided:  April 18, 1994

APPEARANCES:
For the Plaintiffs:        Daniel J. Berman, Esq.
 Rush, Moore, Craven, Sutton, Morry & Beh
                                     2000 Hawaii Tower
                                     745 Fort Street
                                     Honolulu, HI 96813-3862

For the Defendant:     Delson Ehmes, Esq.
                                     P.O. Box 1018
                                     Kolonia, Pohnpei FM 96941

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HEADNOTE
Civil Procedure ) Summary Judgment
     Where both the plaintiffs and defendant claim that the other party is liable and dispute the amounts, viewing the plaintiffs' motion for summary judgment in the light most favorable to the defendant, genuine issues of triable material fact remain precluding summary judgment.  House of Travel v. Neth, 6 FSM Intrm. 402, 403 (Pon. 1994).

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COURT'S OPINION
MARTIN YINUG, Associate Justice:
     This matter is before me on Plaintiffs' Motion for Summary Judgment.  The Defendant has filed an Opposition to the Motion for Summary Judgment.  The Court having reviewed the parties'

[6 FSM Intrm. 403]

motions and supporting affidavits denies Plaintiffs' Motion for Summary Judgment.  The Court's reasoning and decision for denying the motion follow.

     The Plaintiffs in this case are House of Travel, a corporation, and Raul Miralles, a natural person.  They bring this action against defendant Shelten Neth to recover money due upon an open account.  The Plaintiffs claim damages against the Defendant for breach of contract amounting to $5,543.53 plus accrued interest.

     In answer to the complaint, the Defendant denies the amount of the damages claimed and, by way of counterclaim and affirmative defense, states that Plaintiffs have overcharged him in the amount of $2,000 more or less in violation of 34 F.S.M.C. 103(13).  On his counterclaim, the Defendant requests judgment against Plaintiffs of $2,000 for the alleged overcharged amount, $100 in actual damages, and punitive damages pursuant to 34 F.S.M.C. 106(1).

     The Court shall grant summary judgment if the pleadings, discovery, and any other affidavits submitted reveal no genuine issue of material fact and the movant is entitled to judgment as a matter of law.  This is the applicable standard on a motion for summary judgment.  FSM Civ. R. 56(c).

     Here, at least two genuine issues of material fact exist that require a trial: (1) whether the amount of money claimed by plaintiffs against the defendant is correct, and (2) whether the plaintiffs have overcharged the defendant and, if so, by how much.

     In paragraph 8 of their complaint, the Plaintiffs claim that the "Defendant . . . has a balance due of $5,543.53 plus accrued interest."  In paragraph 13 of the complaint, it is stated that "Plaintiffs have been damaged by Defendant . . . in the amount of $5,543.53 in principal."  In his Opposition to the Motion for Summary Judgment, the Defendant admits that he fails to deny specifically paragraph 8 of the complaint.  He argues, however, that paragraphs 8 and 13 of the complaint make the same averment on the amount of the claim.  That same amount is specifically denied by Defendant in paragraph 7 of his answer.  Furthermore, the Defendant "admits owing some money but not the whole amount claimed by Plaintiffs" in the affidavit filed with Defendant's Opposition to Plaintiffs' Motion for Summary Judgment.  Hence, the amount of the claim for damages is put in dispute as a factual matter to be decided at trial.

     In his answer, the Defendant interposes the counterclaim that "Plaintiffs have overcharged defendant in the amount of about $2,000 more or less in violation of 34 F.S.M.C. 103(13)."  Plaintiffs filed their answer to Defendant's counterclaim on March 16, 1994.  By specifically denying Defendant's counterclaim for the alleged overcharged amount, Plaintiffs make this another factual issue to be proved at trial.

     Here, the issue of liability and the issue as to the amount of damages exist. Who is liable to whom, and for what amount?  The first is a legal issue and the second a factual one.  There is a claim and a counterclaim and the respective amounts prayed for each are in dispute.  All these need to be resolved at a trial of this case.

     The burden of showing a lack of triable issues of fact belongs to the moving party.  FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). In determining whether triable issues exist, the Court must view the facts presented and inferences made in the light most favorable to the party against whom summary judgment is sought.  Kihara Real Estate, Inc. v. Estate of Nanpei (I), 6 FSM Intrm. 48, 52 (Pon. 1993); Bank of Guam v. Island Hardware, Inc., 2

[6 FSM Intrm. 404]

FSM Intrm. 281, 284 (Pon. 1986).

     Applying the preceding standards to the case at bar, the Court finds that the Plaintiffs fail to meet the burden of showing a lack of triable issues of fact.  And having viewed the facts in a light most favorable to the Defendant, the Court finds genuine issues of triable fact and concludes that Plaintiffs are not entitled to judgment as a matter of law.  Plaintiffs' Motion for Summary Judgment is accordingly denied.

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