SMALL CLAIM NO. 62-05

For the Plaintiff:   Canney L. Palsis, Esq.

                                 Micronesian Legal Services Corporation

                                 P.O. Box 38

                                 Tofol, Kosrae   FM   96944

For the Defendant:   Snyder H. Simon, trial counselor

                                       P.O. Box 1017

                                       Tofol, Kosrae   FM   96944

      Kosrae Rule 11 requires that every pleading of a party represented by an attorney or trial counselor must be signed by at least one attorney or trial counselor of record in his individual name and a party who is not represented by an attorney or trial counselor must sign his pleading. Thus, when a defendant, and not his trial counselor, signed a motion for dismissal himself, the signing of the motion did not comply with Rule 11. George v. Phillip, 13 FSM Intrm. 520, 521 (Kos. S. Ct. Tr. 2005).

      A plaintiff’s claim based upon defendant’s breach of the settlement agreement reached in an earlier court case, is not based upon the merits of the claim presented in that case because that case’s merits were resolved by settlement between the parties, and based upon that settlement, that case was dismissed. George v. Phillip, 13 FSM Intrm. 520, 521 (Kos. S. Ct. Tr. 2005).

      When a settlement agreement was reached by the parties in a case, it represents a new

agreement between the parties. The failure to comply with the settlement agreement is a new claim, separate and independent of the original claim. Settlement agreements are contracts which are enforceable by a court. Therefore, the doctrine of res judicata does not apply to a settlement agreement and accordingly a motion for dismissal must be denied. George v. Phillip, 13 FSM Intrm. 520, 521 (Kos. S. Ct. Tr. 2005).

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      On November 7, 2005, a hearing was held on this small claim. A Motion for Dismissal had been filed by Defendant pro se on November 4, 2005. An Opposition to the Motion was filed on November 7, 2005 by Plaintiff. Canney Palsis, MLSC, appeared for the Plaintiff. Snyder Simon represented the Defendant.

      As a preliminary matter, the filing of Defendant’s Motion for Dismissal is addressed. The Motion was filed by the Defendant himself, Mr. Phillip, on November 4, 2005. Snyder Simon represents Defendant in this matter. Mr. Simon accepted service of notice of hearing on November 1, 2005 at this Courthouse, on behalf of the Defendant, as legal counsel of Defendant. Furthermore, Mr. Simon, who was listed as counsel for the Defendant on the Court’s calendar, did not object to or correct that listing on the Court’s calendar. Consequently, Mr. Simon’s actions before this Court were accepted as his legal representation of the Defendant, effective November 1, 2005.

       KRCP Rule 11 requires that "every pleading of a party represented by an attorney or trial counselor shall be signed by at least one attorney or trial counselor of record in his individual name. . .A party who is not represented by an attorney or trial counselor shall sign his pleading . . . ." Here, the Motion for Dismissal was signed by the Defendant himself and not by his trial counselor, Mr. Simon. Therefore, the signing of the Motion for Dismissal did not comply with KRCP Rule 11. Plaintiff also raises the manner of service of the Motion. Plaintiff claims that the Motion was served upon him by Macdonald Ittu, who is not connected to this matter, and therefore service is improper. Defendant did not provide a satisfactory reason as to why the Motion was served upon Plaintiff by Mr. Ittu, a person unrelated to this matter. The Motion for Dismissal does not comply with the requirements of KRCP Rule 11 and is therefore defective.

      The Motion for Dismissal must also be denied on a substantive basis. Plaintiff’s claim is based upon Defendant’s breach of the settlement agreement reached in Small Claim No. 60-03, and is not based upon the merits of the claim presented in Small Claim No. 60-03. The merits of Small Claim No. 60-03 were resolved by settlement between the parties, and based upon that settlement, Small Claim No. 60-03 was dismissed. The settlement agreement reached by the parties in Small Claim No. 60-03 represents a new agreement between the parties. The Defendant’s failure to comply with the settlement agreement is a new claim, separate and independent of the original claim. Settlement agreements are contracts which are enforceable by this Court. See James v. Lelu Town, 11 FSM Intrm. 337 (Kos. S. Ct. Tr. 2003). Therefore, the doctrine of res judicata does not apply to the settlement agreement in this matter, and accordingly Defendant’s Motion for Dismissal must be denied.

      The parties do not dispute the amount owed by the Defendant, based upon the settlement agreement: $892.50. The Defendant proposes to pay the amount by check to the Kosrae Marshall Group, an allegedly defunct group. Defendant now claims that the members of the Kosrae Marshall Group is the intended beneficiaries of the settlement payment. This Small Claim was filed by the Plaintiff as an individual. Therefore, this Court must consider the Plaintiff’s claim as filed by the

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