FSM SUPREME COURT TRIAL DIVISION
Cite as FSM Telecommunications Corp. v. Worswick,
9 FSM Intrm. 6 (Yap 1999)
FSM TELECOMMUNICATIONS CORPORATION,
CIVIL ACTION NO. 1995-3023
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Trial: March 11-13, 1998
Decided: February 19, 1999
For the Plaintiff: Andrew Clayton, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941
For the Defendant: Mariano W. Carlos, Esq.
P.O. Box 272
Koror, Palau PW 96940
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Evidence ) Burden of Proof
Preponderance of the evidence is not evidence to a moral certainty or clear and convincing evidence. As a standard of proof, preponderance of the evidence has been held to mean that the facts asserted by the plaintiff are more probably true than false. The party having the burden of establishing his claim by a preponderance of the evidence must establish the facts by evidence at least sufficient to destroy the equilibrium and overbalance any weight of evidence produced by the other party. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 12 (Yap 1999).
Evidence ) Burden of Proof
If the plaintiff's evidence is more convincing than that which defendant offers in opposition, then plaintiff has met its burden of showing that the facts for which it contends are more probably true than
false. If, on the other hand, plaintiff's evidence is less convincing than that offered in opposition, then defendant's version of events is the more likely, and the plaintiff fails to meet its burden of proof. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 12 (Yap 1999).
An open account is not self-proving. An account must be supported by an evidentiary foundation to demonstrate the accuracy of the account. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 15 (Yap 1999).
Evidence ) Burden of Proof
When the plaintiff has demonstrated that it billed the defendant for long distance services according to its usual and customary practice, and that its billing practices accurately reflect its customers' usage of the communications services which it offers to the public and when the defendant's 1998 testimony about her long distance usage habits during September 1990 through July 1, 1992 does not persuade the court that she received inaccurate telephone bills from plaintiff at relevant times under the terms of the parties' valid and enforceable contract, the plaintiff has met its burden of proof. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 15 (Yap 1999).
Evidence ) Expert Opinion
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 15 (Yap 1999).
Evidence ) Expert Opinion
When an expert's testimony, although not objected to, lacks the foundation contemplated by Evidence Rule 703, it is, at best, entitled to slight weight. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 16 (Yap 1999).
Contracts ) Implied Contracts
When a defendant, after canceling her long distance phone telephone service, continues to make long distance calls because the plaintiff is slow in terminating the service, the defendant, having made those calls, is precluded from arguing that she should not pay for them. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 17 (Yap 1999).
Attorney, Trial Counselor and Client ) Fees
When there is no statutory or contractual basis for a request for attorney fees, each party will normally bear its own attorney's fees. FSM Telecomm. Corp. v. Worswick, 9 FSM Intrm. 6, 18 (Yap 1999).
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MARTIN YINUG, Associate Justice:
In this highly fact-intensive case, defendant contests sizeable long distance charges which the plaintiff, FSM Telecommunications Corporation ("Telecom"), billed to her beginning in September of 1990 and continuing for nearly two years, through August of 1992. By that time the total charges
stood at over $7,000 for approximately 466 long distance calls. Defendant claimed at trial that her bills were excessive, and that she should pay only what she felt were reasonable charges of approximately $1,200. The court concludes that defendant is liable to plaintiff for the sum of $6,117.78.
I. Findings of Fact
1. At relevant times, defendant Juanita Worswick and her husband maintained separate households. Defendant lived in Yap with their three children, ages approximately eleven, four, and three years old, and a Filipino maid, while her husband resided in Palau. The vast majority of the calls to which defendant takes exception were made from defendant's number in Yap to her husband's number in Palau.
2. On February 20, 1990, defendant signed a service application with defendant Telecom for international direct distance dialing ("IDD"), or direct dialing long distance service. The application was approved on March 21, 1990. The application provides in pertinent part that
Customer agrees to be solely responsible for all utilization of the above numbers for direct distance dialing whether authorized or not authorized by Customer. In the event there is use of direct distance dialing services on a telephone number issued to Customer, Customer agrees to pay Corporation for such use whether the use was authorized by Customer or not. Customer agrees to be solely responsible for use and misuse of this service on telephone numbers issued to him.
3. Defendant apparently used her long distance service and paid her bills until September of 1990. During that month and thereafter she received telephone bills which included one minute phone calls 1, nearly all of which were to her husband's number in Palau, and which she claimed she did not make.
4. When defendant first complained about the one minute calls was not clear, but it was before May 29, of 1991. She first spoke by telephone with Telecom's office in Yap about them, and at some point took her billing statements for September of 1990 through March of 1991 to Telecom's office in Yap, where she discussed them with Mr. Laurence Kenbaroy, an accountant. Copies of these billing statements were admitted into evidence as plaintiff's exhibit 26. During the period September of 1990 to March of 1991, defendant's bills showed approximately 299 long distance phone calls, and approximately 170 one minute calls.
5. By the court's calculation based on plaintiff's exhibit 26, defendant's average bill for long distance service from September of 1990 through March of 1991 was approximately $540 per month. During that period, the one minute calls averaged about 24 per month, which, billed at three dollars a minute (the per minute charge at relevant times for a call from Yap to Palau) means an average during this period of approximately $72 per month for the one minute calls. Thus, the one minute phone calls constituted approximately thirteen percent of the monthly bills averaged over this period.
6. At relevant times, the per minute charge for calls to Palau was three dollars. A caller would be billed for one minute for any call lasting one minute or less. For example, if someone were to answer the phone and immediately hang up, the caller would still be billed for one minute.
7. When defendant presented her billing statements to Mr. Kenbaroy, she had circled the calls that "made sense" to her. She protested only the uncircled calls, and sought a credit adjustment for them. Based on plaintiff's exhibit 26, the total of the uncircled calls was 181, with 162 of those being one minute calls, and the remainder being of two minutes duration. Eight one minute calls, including one to Saudi Arabia on January 17, 1991, and 22 two minute calls were among those circled as ones that "made sense" when defendant presented her bills to Mr. Kenbaroy.
8. Among all of FSM Telecom's customers in Yap, defendant's complaints about being billed for numerous one minute calls to a known number ) in this case her husband's ) were unique. Mr. Kenbaroy forwarded her complaints in this regard to Mr. Vitus Susaia, in Pohnpei by a fax dated May 29, 1991. Mr. Susaia is chief of Telecom's division of collections.
9. In March of 1991, defendant received a credit in the amount of $903. This credit was unrelated to her complaints about the billings for the one minute calls, but at the time defendant thought this credit was for those calls. In actual fact, this credit represented one half of the total IDD charges of $1,806.00 for which she had been billed in the previous month of February. In that month, as part of a systems upgrade that Telecom was then undergoing, an unidentified individual at Telecom had mistakenly run the billing tape twice, causing all IDD customers to be double billed for their IDD charges. Consequently, all Telecom customers received a credit in the amount of half of the IDD charges for February 1991.
10. Defendant did receive a second credit, this time for the one minute calls about which she had complained from September of 1990 until March of 1991. On June 26, 1991, Telecom credited her account in the amount of $530. The stated reason for this credit was that Telecom had received complaints from four or five customers about their bills during the upgrade period. Because Telecom did not have the time to investigate these complaints, it credited the respective accounts. According to Vitus Susaia, none of the other customers who were given credits complained about one minute calls appearing on their bills.
11. After March of 1991, defendant continued to use her long distance service, and the one minute calls continued to appear on defendant's bills, although with less frequency. On May 22, 1991, she submitted a written request to Telecom asking that her unlisted number be changed to a new unlisted number in order "to keep unnecessary calls off my phone." At trial, defendant testified that she changed her number because she was getting calls at night that were disturbing her.
12. On May 29, 1991, the new number began generating bills. For calls made in May and June from both numbers, she was billed $1,153. For these two months, only two one minute calls were shown on Telecom's records 2, admitted into evidence as defendant's exhibit 8. For July, 1991, the one minute calls were again more frequent, with six calls out of a total of 21 long distance calls shown as one minute calls. From August of 1991 through July 1, 1992, when the last IDD call was made, by the court's calculations based on defendant's exhibit 8, total long distance calls averaged just over 9 a month, with the one minute calls averaging just over 2 per month. The average total monthly bill for this period (August 1991 through July 1, 1992) was approximately $230.
13. On November 27, 1991, defendant was given a credit of $24. Five dollars of this amount was credit for a one minute call made on January 17, 1991, to Saudi Arabia. The remainder of the credit was for other calls, including calls to Saipan.
14. On April 30, 1992, defendant requested termination of her IDD service on number 350-2491. Defendant continued to utilize her IDD service throughout June until July 1, 1992, when it was terminated.
15. The international dialing format for Palau prior to June of 1991 included a nine in the series of numbers that one had to dial to reach Palau. For example, defendant's husband's number in Palau is 488-2737. Prior to June of 1991, it was necessary to dial 011 680 9 488 2737 to reach defendant's husband in Palau from Yap. Thereafter one would dial 011 680 488 2737. The first call to Palau in both Telecom's internal records as well as the billing statements to reflect the format change was a call placed on June 8, 1991.
16. Admitted into evidence over defendant's objection as plaintiff's exhibit 28 was a memorandum from Vitus Susaia to all department heads on the subject of "New Numbering Plan for Dialing Rep. of Belau," which indicated effective June 1, 1991, dialing "9" after the "680" country code was no longer necessary in order to reach Palau.
17. At all relevant times, the space allotted in both Telecom's internal records and billing statements for displaying the number called was limited to 10 digits, which means the three digit country or area code, and the seven digit number. Because of the extra nine required to call Palau prior to June of 1991, the calls to defendant's husband, as well as other calls to Palau, began with 9, and do not show the last number dialed. For example, prior to June 8, 1991, calls to defendant's husband's number in Palau were shown as 680 948-8273; thereafter calls to her husband's number appeared as 680 488-2737.
18. In order for a billing for a call to be generated, an answering supervision at the number called must occur. An answering supervision is an answer, whether by voice, answering machine, or fax machine. This triggers the billing mechanism. Vitus Susaia, in the course of his investigation of defendant's complaints, placed calls to the numbers shown on defendant's statements, and always received an answering supervision.
19. Sixteen calls to Palau starting on April 25, 1992, and ending on May 9, 1992, lack the "4" in the dialing sequence. For example, one such call to defendant's husband reads as 680-882-737, when it should actually read 680 488-2737. This was a result of a printing error. These calls were actually made to the numbers indicated for the times indicated.
20. On April 29, 1992, an 89 minute call to defendant's husband was billed at $54, or $1.64 per minute. No indication of "DISCNTAPPLED" appears, as appears for calls placed on November 8, 1990 (billed at $1.50 per minute) and November 13, 1990 (billed at $1.62). Defendant was billed for these calls at less than the customary rate of $3.00 per minute. Defendant was billed at the less than customary rate for one other call: $24 was billed for a 27 minute call to her husband in on February 23, 1991. All four of these calls were made for the time durations shown. 3
21. An eight minute call that was made to Hawaii on April 27, 1991, was correctly billed at $20
and not $24, since the per minute billing rate to Hawaii at relevant times was $2.50 a minute, and not $3.00.
22. Mike Hauge, who described himself as an expert in fiber optics, testified for the defendant. He testified that he had worked for various telephone companies, and had come to Yap in the beginning of 1992 to install the new telephone system. It was his opinion that when he arrived on Yap, the former system was in a state of severe disrepair and totally antiquated. According to Mr. Hauge, the old system was an analog system, whereas the new system is a digital system. He was not familiar with the billing system in use during the time the disputed calls were made, but said that under the old system, and under certain circumstances which he did not specify, an electrical short could induce the billing mechanism to bill a call that was not made. Mr. Hauge testified that he could not say whether an electrical short had generated the billing errors in this case.
23. Mr. Hauge testified that partial numbers appearing on the billing statements were not necessarily a result of a short. He knew of no way that a call could be made without the proper number of digits being placed in the system. He testified that if somebody in one household placed a call, it would be possible for another household to be billed for the other household's calls if the circuits became crossed and there was a break in the sheath of the wires. Mr. Hauge claimed that he had had multiple problems with his own phone bill.
24. Philip Fagoligam, chief technician for Telecom in Yap, testified in rebuttal to Mr. Hauge's testimony. He was employed by Telecom during the period when the calls complained of were billed. He offered as physical evidence a length of jelly filled cable that he had retrieved from Telecom's warehouse. He testified that jelly filled aerial cable, as opposed to airfilled cable, had been used throughout Yap between 1990 and 1992, and had been used from 1980 until the new underground system was installed. He had never come across airfilled cable on Yap. According to Mr. Fagoligam, the telephone system in Yap had always been digital, and not analog. A short in the line, according to him, would never create a call, but rather would cause the line to go dead. It was not possible for a faulty line to generate a call. The only way to activate the billing mechanism would be for the "loop to be completed," a phrase used to describe a completed telephone call. Someone at the called number picking up the receiver would act to complete the loop. Similarly, a fax machine, answering machine, or any other form of answer would be billed as a completed call.
24. Defendant presented testimony from three witnesses who had experienced problems with phone bills. Marvin Hamilton, now chief public defender in Palau and formerly the public defender in Yap from September of 1991 until January of 1995, testified that during that time the Yap Public Defender's Office was billed for two or three calls to Botswana that no one in his office made. He also seemed to recall one or more calls to Saudi Arabia and some to upstate New York that no one in his office made. He further testified that in early February 1992 and thereafter, when he had occasion to call Palau with some frequency, he found it very difficult to get a long distance call through to Palau. John Fanoway, an immigration service employee, testified that sometime in the 1990's he applied for IDD, and subsequently experienced some numbers showing up on his billing that he did not call. He subsequently terminated his IDD calling. Victoria Laetman, who works at the state agriculture department, testified that she once received a billing for a one minute call to Hawaii which she did not place.
25. Finally, as to the disputed calls for which defendant had not previously received a credit, the bills which plaintiff sent to the defendant accurately reflected defendant's usage of plaintiff's long distance telephone services.
II. Discussion and Conclusions of Law
A. Burden of Proof
The court approaches the facts of this case taking express cognizance of the fact that a plaintiff's burden of proof in a civil case is by a preponderance of the evidence.
Preponderance of the evidence is not evidence to a "moral certainty" or "clear and convincing evidence." As a standard of proof, "preponderance of the evidence has been held to mean that "the facts asserted by the plaintiff are more probably true than false." Burch v. Reading Co., 240 F. 2d 547, 579 (3rd Cir. 1957). The party having the burden of establishing his claim by a preponderance of the evidence must "establish the facts by evidence at least sufficient to destroy the equilibrium and overbalance any weight of evidence produced by the other party." 30 Am. Jur. 2d, Evidence, § 1164, at 340.
Meitou v. Uwera, 5 FSM Intrm. 139, 142 (Chk. S. Ct. Tr. 1991).
In the case at bar, plaintiff has met its burden of proof that the parties entered into a contract for long distance service, that plaintiff provided that service which was then used by plaintiff, and that plaintiff in due course billed defendant in its usual and customary manner. The bone of contention has to do with the accuracy of the bills generated. Plaintiff asserts that it accurately billed defendant for those services, and that defendant has not paid for them. In response, defendant contends that she was billed for calls that neither she nor anyone else made from her phone, and that she was billed excessive amounts for some calls. Defendant attacks one of the material elements of plaintiff's case, since there can be no enforceable contract for calls which were either not made from defendant's phone, or for calls for which a wrong amount was charged.
Only two alternatives obtain. Either the bills sent to defendant accurately reflected her long distance usage, or they did not. Hence, as between the two parties, the court must determine which party offers the more likely version of events in this regard. If the plaintiff's evidence is more convincing than that which defendant offers in opposition, then plaintiff has met its burden of showing that the facts for which it contends are "more probably true than false." Meitou v. Uwera, 5 FSM Intrm. at 142 (citing Burch v. Reading Co., 240 F.2d at 579). If, on the other hand, plaintiff's evidence is less convincing than that offered in opposition, then defendant's version of events is the more likely, and the plaintiff fails to meet its burden of proof. The court determines that as to the accuracy of the disputed telephone bills at issue, the plaintiff's evidence is the more convincing. As between plaintiff and defendant, plaintiff's version of events is the more likely.
B. Defendant's Memory
Defendant's challenge to the accuracy of her phone bills rests on her memory about her calling patterns. During the nearly two year period of the disputed calls, defendant apparently made no effort to maintain an independent record of when she made her calls, to whom they were made, or of the length of her calls. The reliability at trial in 1998 of defendant's memory about events that began approximately eight years before trial, and ended nearly six years before trial, is therefore a paramount consideration in determining the facts of this case, and applying the law to them.
Before addressing the reliability of defendant's memory, a digression is in order. It is useful to note what one of the issues at trial was not. Not for determination was whether defendant had made the numerous one minute calls which appeared on her phone bills starting in September of 1990 and continuing through March of 1991, and about which she complained to Laurence Kenbaroy at Telecom
sometime before May 29, 1991. Nearly all of these calls were to her husband's number. Some of these calls are separated by only a few minutes, and defendant testified, and later argued, that this calling pattern was so unreasonable that the calls could not have been made. On June 27, 1991, defendant was given a credit of $530 for these one minute calls, thus mooting the question whether they were made. However, the court also here finds that plaintiff intended to give a credit for all of the uncircled calls on plaintiff's exhibit 26, which include some of two minutes. By the court's math, the correct credit for these calls is exactly $600, not $530 4. Defendant should be credited correctly. The court finds that defendant should receive an additional credit of $70 for the disputed calls made between September of 1990 and March of 1991.
At trial defendant took her hypothesis regarding the one minute calls a step further, and argued that the alleged frailty of Telecom's billing system with respect to the one minute calls necessarily calls into question the accuracy of the bills for all of the disputed calls. For this reason, some analysis of the one minute calls, although not themselves in issue, is pertinent.
The one minutes calls 5, essentially all of which were to defendant's husband's number in Palau, were episodic in nature. Per defendant's exhibit 8, in September 1990, there were 14 one minute calls, with 13 of them taking place on September 22nd between the hours of 8:22 p.m. and 11:23 p.m. Six minutes after the last call there was a 21 minute call. In October of 1990, there were 8 one minute calls, with 5 on October 6, 1990. But it was in one six day period in November of 1990, that the calls reached their zenith. From Thursday, November 8, 1990, until Tuesday, November 13th, there were no less than 59 calls billed at one minute from defendant's number in Yap to her husband's number in Palau. Twenty-three of these calls occurred on the last day, Tuesday, November 13, 1990. The total one minute calls for November was 63. Thereafter, in December there was a total of 30 one minute calls to defendant's husband's number, with 13 of those occurring on December 20, 1991. From that point on, the one minute calls decreased in number. In January, 1992, there was a total of 15; in February a total of 23, with 10 occurring on February 10th; in March, there was a total of 18, with 7 occurring on March 10th. Thereafter, there appears to be nothing unusual about the occurrence of the one minute calls.
Of interest is that several of the "chains" of one minute calls end in calls of some duration. Some examples are as follows. On September 22, 1990, the 13 one minute calls ended in a 21 minute call to defendant's husband's number. On November 8, a chain of 14 one minute calls, starting at 10:04 p.m. ended in a 32 minute call at 11:44 p.m. On December 20, 1990, a chain of 10 one minute calls starting at 5:59 p.m. culminated in a 7 minute call at 11:01 p.m. This is followed by three more one minute calls that evening, then by a 14 minute call at 7:30 the next morning. On February 10, 1991, a chain of 10 one minute calls ends with a 17 minute call 11 minutes after the last one minute call. Defendant did not present evidence from anyone who purported to have answered, or not to have answered, any of these calls. Given their generally episodic nature, they could represent earnest, even
frantic, efforts to reach someone at the called number. The pattern of the calls is not so unreasonable as to be entirely implausible.
As to the issue that this case does present, defendant's contention that her bills were generally excessive is inconsistent with the testimony about the specific complaints that she lodged with Telecom at the time relevant events took place. At the time she presented her bills for September of 1990 through March of 1991 to Laurence Kenbaroy, copies of which were admitted into evidence as plaintiff's exhibit 26, she circled the calls "that were more than one minute that made sense." The fact of the circle notations is important, because it shows that defendant consciously considered each circled call and determined it "made sense." This determination of reasonableness was made at a time when defendant was incurring on average more than $500 a month in long distance charges. The one minute calls to which she objected at the time constituted only about 13% of total charges. The fact that defendant found that the bulk of the long distance "made sense" at the time undercuts her claim at trial that her IDD charges were generally inaccurate. Defendant argues at page 7 of her post-trial brief that "[w]hen this case was filed and plaintiff produced the spreadsheet of her alleged calls of her alleged calls, Defendant's Exhibit 8, she then realized that even those calls she circled were phantom calls." This case was not filed until May 15, 1995, nearly three years after the occurrence of the last relevant event on July 1, 1992, the date of the last disputed call. It is unlikely that defendant would have made the express determination that the calls "made sense" at the time, when she had a recent recollection of events, if she had had serious concerns about the accuracy of the bills for the calls she circled.
The accuracy of defendant's memory is a question which also arises relative to another aspect of defendant's exhibit 8, the computer printout generated by Telecom showing all of the calls billed to defendant from September 14, 1990, through July 1, 1992. In preparation for trial, defendant went through this list and highlighted in yellow the calls which she believed she did not make, and highlighted in green the calls that she felt she may have made. Out of the approximately 466 calls shown, she highlighted 40 in green. The first call highlighted in green is a call on January 7, 1991. Out of all the calls which she circled as being reasonable when she presented her bills to Laurence Kenbaroy in 1991, this is the only one that six years later, when she testified at trial, she felt she may have made.
Also important relative to defendant's exhibit 8 is the fact that defendant highlighted in yellow all calls to numbers in Palau which include a "9" in the dialing sequence on the computer printout. Most of these were calls to her husband's number. She highlighted these calls because she did not believe that she had dialed a "9" at relevant times to reach Palau, and concludes that she did not make those calls. Defendant carries this line of thinking through by showing the numbers to Palau which include the "9" in the dialing series under the heading "WRONG NUMBERS (PALAU)" on pages 3 through 8 of defendant's demonstrative exhibit 9, which was admitted into evidence. She apparently characterizes these numbers as "wrong" because they contain the "9." By defendant's calculation, these calls amount to $4,233.00 in bills. Yet, it is palpably the case that prior to about June 1st of 1991, it was not possible to dial Palau without including a "9" after the country code. 6 Defendant's memory has failed her on this point. For defendant to insist that all numbers to Palau on defendant's
exhibit 8 which contain a "9" in the dialing sequence are therefore "wrong," and that she should not have to pay for them on that basis is not a convincing argument.
Citing 1 Am. Jur. 2d Accounts and Accounting § 19 (1962), defendant argues in her post-trial brief that an open account is not self-proving, and that an account must be supported by an evidentiary foundation to demonstrate the accuracy of the account. This statement of law is correct as far as it goes. However, if the court rightly apprehends defendant's argument, she contends that the burden is on Telecom to provide testimony from someone who can personally confirm that each of the calls took place as indicated. This argument is shy of the mark. Plaintiff aptly responds to this contention on page 26 of its post-trial brief as follows.
FSM Telecom provides a service in which they [i.e., individuals at Telecom] are not an active participant. Customers do not receive the service directly from FSM Telecom as in other service industries such as an attorney to a client or for sale of goods in which the vendor and customer interact. Instead, FSM Telecom provided a technology by which customers can contact other customers with no interaction by FSM Telecom. Plaintiff's connection to this process is via its computers which record each call, its duration and to whom it is made. Defendant's assertions that plaintiff must support its billing procedure through testamentary [sic] evidence regarding each call is divorced from the reality of modern day technology. If plaintiff were to be required to satisfy this burden, then it would be required to make all calls transfer through a human switch board so that a human could record all the calls in case there were a legal controversy.
Plaintiff has demonstrated that it billed the defendant for long distance services according to its usual and customary practice, and that its billing practices accurately reflect its customers' usage of the communications services which it offers to the public. The defendant's testimony in 1998 about her recollection of her long distance usage habits during September of 1990 through July 1 of 1992 did not persuade the court that the telephone bills which she received from plaintiff at relevant times under the terms of a valid and enforceable contract between the parties were inaccurate. The court finds that plaintiff has met its burden of proof, and that defendant's bills, excluding those for calls for which defendant received a credit and which were not in issue, were accurate.
C. Defendant's Expert Testimony
Defendant offered two explanations why her bills may have been excessive. She claimed that an electrical short could have triggered Telecom's billing mechanism to bill calls that were not made. She also maintained that crossed, unsheathed telephone wires could have resulted in her account being billed for calls actually made by the party to whose phone the line crossing her own led. In support she offered the testimony of Mr. Mike Hauge, who testified that he had formerly been employed by a number of telephone companies. Mr. Hauge described himself as an expert in fiber optics.
Rule 702 of the FSM Rules of Evidence, entitled "Testimony by Experts," provides in pertinent part as follows: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Subsequent Rule 703 further provides: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing."
Plaintiff did not object to Mr. Hauge's competence as an expert witness, and did not offer a foundation objection to the substance of his testimony.
Mr. Hauge offered his opinion that an electrical short could have induced Telecom's billing mechanism to bill calls to defendant that she did not make, although he could not say that a short caused such billings in this case. Three points bear making about Mr. Hauge's testimony. First, he readily admitted that he was not familiar with the billing mechanism in place at Telecom at the time the disputed calls were made. His opinion, then, was based on what could only have been surmise as to the sort of billing mechanism that was in place at relevant times. As such his opinion was based neither on specific observations of the billing mechanism, nor on specific facts about the billing mechanism about which he had been told. Second, he testified that "under certain circumstances" a short could result in the billing of calls not actually made. However, he did not specify what these circumstances were, or whether those "certain circumstances" actually came about, or were probable. Third, Mr. Hauge did not address how it might happen that an electrical short would cause erroneous billings for calls to numbers that defendant routinely dialed, as opposed to random numbers. Although plaintiff did not object to the admission of Mr. Hauge's opinions, that testimony lacked the foundation contemplated by Rule 703. At best, it is entitled to slight weight.
Mr. Hauge further testified that it was possible that defendant could have been billed for calls placed by others. He claimed that he observed airfilled cable in a state of disrepair in Yap shortly after the period in which the disputed calls were made. He testified that the crossing of unsheathed wires could have resulted in defendant being billed for calls made by another party, the other party being the individual to whom the wire crossing the defendant's wire led. However, the vast bulk of the approximately 466 calls at issue were made to numbers familiar to the defendant. Approximately 16 of those were made to numbers outside Micronesia, with seven of those being to Hawaii, and five being to Washington state. The court is not persuaded that the calls to these numbers resulted from crossed wires.
The court also notes that on some relevant points Mr. Hauge's testimony was diametrically opposed to that of Philip Fagoligam, who has been with Telecom in Yap for fifteen years. Mr. Fagoligam testified that it would be impossible for a short in the line to cause a billing for a call that was not dialed. According to him, the line would be dead from the beginning, since the only way for a call to be billed would be for the loop to be completed. Mr. Hauge also testified that the system when he came on Yap in 1992 was analog and that he saw airfilled cable in use; in contrast Mr. Fagoligam testified Yap's system has always been digital and that jelly-filled cable has been in use in Yap since 1982. Admitted into evidence was a length of aerial cable of the sort used in Yap which was filled with a dense, greasy substance. Mr. Fagoligam had retrieved the length of cable from a Telecom warehouse. Mr. Fagoligam also testified that if corroded wires become crossed, both lines would become disabled, and that it would be impossible for defendant to be billed for someone else's calls as a result.
In sum, Mr. Hauge's testimony did not persuade the court that any portion of defendant's disputed phone bills resulted from an electrical short, or from unsheathed, crossed wires.
D. The Calls Made after Defendant's Termination Request; the Single Call to Saudi Arabia
The court specifically addresses these two issues. With respect to the calls placed after her IDD termination, defendant contended that her charges for long distance service should have ceased as of the date of her termination request. Defendant requested termination of her long distance direct dialing service by application dated April 30, 1992, and the documents in this regard were admitted into evidence as defendant's exhibits 4, 5, and 6. Exhibit 6 bears the handwritten notation, "Terminate IDD," which would not appear to be in defendant's handwriting, and is then signed and dated, April 30, 1992, in defendant's handwriting. Exhibit 4, which is titled "Service Applications," bears the notation at the top, in handwriting that again appears to be different from defendant's, "IDD Term,"
and under that, "5/01/92." Defendant certainly made it plain to plaintiff that she wished to have her long distance service terminated. Yet, plaintiff did not terminate the service until two full months later, on July 1, 1992.
According to the plaintiff's own demonstrative exhibit 30, defendant's outstanding, and substantial, balance as of June 1, 1992, was $6,672.00, with the last payment of $40.00 having been made on April 6, 1991. Nevertheless, defendant continued to use her service, and plaintiff continued to permit its use. Defendant placed eight long distance calls in May, for a total of $135, six of which were to her husband, and placed 15 calls from June 11 through July 1, for a total of $579. Out of the $579 billed amount, $525 was for calls to her husband. Had Telecom acted promptly to terminate the long distance service, these added charges would not have been incurred. At the same time, defendant having made these calls, she is precluded from arguing that she should not pay for them. 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (1973).
With respect to the single, one minute call to Saudi Arabia on January 17, 1991, for which defendant was billed $5.00, defendant's position appears to be that it was so improbable that a call would be made from Yap to Saudi Arabia that the fact of that single billing casts doubt on all of the other bills. First, this call could have resulted, according to Vitus Susaia's testimony, from a misdialed country code. The court notes that the country code shown on defendant's exhibit 8 is 966. Defendant was routinely dialing a "9" as part of the dialing sequence to reach Palau in January of 1991, since the format change did not occur until June of that year. If one removes the "9" from the Saudi Arabia call, one is left with the sequence beginning "6 6 7 3 3 2 . . ." The call listed immediately before the one to Saudi Arabia on defendant's exhibit 8, which was to Saipan, has a similar initial sequence of "6 7 0 3 2 2 . . ." Apart from that, when defendant took her bills to Laurence Kenbaroy approximately seven years ago, defendant expressly circled this call on plaintiff's exhibit 26 as one that "made sense," and this was not addressed at trial. Finally, on November 27, 1991, defendant was given a credit of $24, to cover the $5 charge for this call and others, including calls to Saipan. The single, one minute call to Saudi Arabia is not probative with respect to the other issues in this case.
E. Final Observation
When defendant was asked if she ever had had an occasion to call her husband between September of 1990 and June of 1991, she responded that "I may have, I don't know." When asked whether she had called her husband at least once during that time, her response was that "I only call when I have to call him for something urgent or something that comes up that I need to talk to him . . . maybe, I cannot tell but maybe in the most four to five a month or less than that, I'm not sure."
The court notes the following. Approximately 466 calls are shown on defendant's exhibit 8. In August of 1991, defendant made only two long distance calls; and in October, 1991, only one; and in November, 1991, only four. In December, 1991, she made nine calls totaling $73.50, but none were to her husband. Excluding these non-characteristic months leaves approximately 450 calls over a period of eighteen months. If one assumes that defendant called her husband an average of 5 times a months for that period, that is a total of 90 calls, or twenty percent in terms of number of calls. But if one considers the five longest calls to her husband's number each month during that period, averaging about 18 minutes in length, one discovers that those five longest calls over those eighteen months comprise approximately 59% of all of defendant's long distance bills for calls to all numbers during that period.
The fact that 5 calls per month to defendant's husband account for 59% of the bills would seem to lessen the degree of the apparent discrepancy between the defendant's testimony and the facts of this case. The fact that defendant's calling habits in all particulars did not conform to her memory of
six years after the end of relevant events does not, however, relieve her of the liability for the charges incurred. Taking into account the $1,085.00 which she has paid on her account to date, plus the $70 error relative to the credit for the uncircled calls on plaintiff's exhibit 26, there remains due the sum of $6,117.78. Defendant is liable for this amount.
Based on the foregoing, defendant is liable to plaintiff for the sum of $6,117.78, plus the costs of this action. Plaintiff also requested its attorney fees, but has provided no basis for this request, either statutory or contractual. Normally, each party will bear its own attorney's fees. Semens v. Continental Air Lines, Inc. (II), 2 FSM Intrm. 200, 208 (Pon. 1986). Plaintiff's request for attorney's fees is denied.
1. As an example, the billing for September 22, 1990, shows thirteen one minute phone calls made in the evening at 8:22, 8:54, 10:25, 10:27, 10:37, 10:44, 10:46, 10:52, 10:58, 11:01, 11:05, 11:12, and 11:23. Six minutes after the last call, at 11:29 p.m., a 21 minute call was billed. (Back to opinion)
2. Defendant's exhibit 8 is Telecom's internal computer printouts, which include all long distance calls billed to defendant's number from September 14, 1990, through July 1, 1992. Plaintiff's exhibit 26 is a photocopy of the bills sent to defendant from September of 1990 through March of 1991. For the months September of 1990 through March of 1991, the information found in both exhibits is essentially identical, although different in format. (Back to opinion)
3. The court here makes the brief conclusion of law that no prejudice resulted to the defendant as a result of these calls, since she was billed at less than Telecom's customary rate of $3.00 per minute. (Back to opinion)
4. According to plaintiff's exhibit 26, there were 162 uncircled one minute calls (162 X $3 per minute X 1 minute = $486) and 19 two minute calls (19 X $3 per minute X 2 minutes = $114) for a total value for the uncircled calls of $600 ($486 + $144). (Back to opinion)
5. Defendant points to an additional infirmity with respect to eight of the one minute calls for which she received a credit. The billing records for four calls on November 11, 1990, show only "680 920-"; while one call on November 12, 1990, two calls on February 10, 1991, and one call on March 15, 1991, all show only "680 948-8" on the bills. The fact remains, however, that these are among the one minute calls for which defendant received a credit. Defendant was not prejudiced by the incomplete billing notations for these calls. (Back to opinion)
6. Defendant appears to argue that the fact that the "9" which continues to appear on the bills for calls to Palau from June 2, 1991 through June 6, 1991, further calls the integrity of defendant's billing system into question. According to defendant, since the new dialing format went into effect on June 1, these calls could not have been placed as shown, since they contain the "9." However, a fair inference from this same evidence is that the new dialing format did not go into effect until after June 1, 1991. The first call showing the new dialing format is on June 8, 1991. (Back to opinion)