Cite as Richmond Wholesale Meat Co. v.
Kolonia Consumer Coop. Ass'n (III),
7 FSM Intrm. 453 (Pon. 1996)

[7 FSM Intrm. 453]





Martin Yinug
Associate Justice

Decided:  April 4, 1996
[7 FSM Intrm. 454]

For the Plaintiff:          Fredrick L. Ramp, Esq.
        P.O. Box 1480
                                     Kolonia, Pohnpei FM 96941

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

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Civil Procedure) Pleadings; Usury
     Plaintiff's waiver of a portion of its monetary claim cannot summarily disprove an affirmative defense of usury.  Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (III), 7 FSM Intrm. 453, 455 (Pon. 1996).

Evidence) Authentication
     Business records are normally authenticated by a custodian of records.  A duplicate of an original writing is not admissible if there is a genuine issue as to the authenticity of the original.  Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (III), 7 FSM Intrm. 453, 455 (Pon. 1996).

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MARTIN YINUG, Associate Justice:
     The Plaintiff's Supplemental Motion for Summary Judgment and Motion for Entry of Judgment are denied.  This Memorandum of Decision explains the Court's order.

I.  Procedural Background
     The plaintiff, Richmond Wholesale Meat Co., ("Richmond") moved for summary judgment, in this action to collect on an open account.  By Order entered February 9, 1996, the Court granted Richmond a partial summary adjudication of most of the issues raised by Richmond in its amended complaint.  Richmond was not granted summary judgment, however, because there is at least one genuine issue of material fact on an affirmative defense asserted by the defendant, Kolonia Consumer Cooperative Association, ("KCCA").  KCCA claimed that some of the interest Richmond charged on the open account exceeded the statutory limit, and constituted usury.  The disputed issue of material fact is the amount of Invoice No. 571080.

     After entry of the February 9 Order, Richmond filed a request for entry of judgment and offered to waive the difference between the amount demanded in the amended complaint and the amount

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summarily adjudicated.1  The Court denied the request by Order entered on February 21, 1996, ruling that an interlocutory order summarily granting some of the issues could not be transformed into a final judgment so long as other issues remain to be adjudicated.  Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (II), 7 FSM Intrm. 407, 408 (Pon. 1996).  Waiver of the difference could not summarily disprove KCCA's affirmative defense of usury.  On March 8, 1996, the Court wrote a letter to both counsel, asking them to meet to resolve the remaining issue of fact, the amount of Invoice No. 571080.  Plaintiff filed the pending motions instead.

II.  Plaintiff's Motions
     Plaintiff filed a Supplement to its Motion for Summary Judgment, in response to the Court's March 8 letter, and moved for Entry of Judgment.  In support of its motions, Richmond filed an affidavit of counsel, purporting to authenticate a copy of Invoice No. 571080 attached to the affidavit.  The attached invoice is a copy of a form invoice, except for the total amount.  The total amount listed, $147.89, in the lower right corner, appears to be hand-written.  There is no explanation in the affidavit, or apparent on the face of the exhibit that indicates who made the correction, when it was made, or whether the corrected invoice was ever sent to KCCA.  In its motion, plaintiff explained why the parties could not stipulate to the invoice attached to the affidavit of counsel.  "The parties can not stipulate to this invoice because the invoice attached to the affidavit is a corrected invoice, the original amount having been $168.69, the amount which counsel for the defendant asserts."  Supplement to Motion for Summary Judgment at 2.  The plaintiff then argues that FSM usury laws, 34 F.S.M.C. 201 et seq., should not apply to invoices corrected by merchants.  KCCA filed an opposition on April 2, 1996, likewise focusing most of its argument on the extent to which the usury statute applies.

III.  Legal Analysis
     The parties both request a ruling on the usury claim.  Yet neither party has cited any authority other than the statute, and vague arguments regarding separation of powers and public policy.  On such an inadequate briefing of the issues the Court would be obliged to deny the Motion out of hand.  However, the Court chooses to deny the motion on evidentiary grounds.

     Richmond laid no foundation to support introduction of the invoice attached to the affidavit of counsel.  The affidavit of counsel is not sufficient to authenticate the exhibit, required by FSM Rule of Evidence 901.  Counsel states that the exhibit is a true and correct copy of the invoice, but there is nothing in the affidavit that states the attorney has personal knowledge of the invoice or how counsel obtained this knowledge.  Cf. FSM Evid. R. 901(b)(2).  Normally, business records are authenticated by a custodian of records, e.g., a comptroller, an accountant, or a bookkeeper, who has personal knowledge of a party's books and records.  In support of previous motions in this case, Richmond twice submitted affidavits of Dolores Ombrello, its controller.  It would be a dangerous precedent to allow counsel in the FSM free reign to authenticate the business records of their clients in the United States and elsewhere.

     Second, the "true and correct copy" attached to the affidavit of counsel is not the "best evidence" of Invoice No. 571080.  A party must submit the original writing to prove its contents.  FSM Evid. R. 1002.  A duplicate is not admissible if there is a genuine issue on the authenticity of the original.  FSM Evid. R. 1003(1).  The parties, by their own admission, agree there is an issue as to the

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authenticity of Invoice No. 571080.  Richmond states that the proper amount is $147.89.  (Second Ombrello Aff. para. 7.)  KCCA states the proper amount of Invoice 571080 is $168.69.  (Ex. A to Esau Aff.)  The copy submitted by Richmond does not resolve this issue.  It actually raises more questions, since the correction was apparently made by hand, by an unidentified person, and with no statement when the correction was made or whether the corrected invoice was sent to KCCA.  Under these circumstances, the copy submitted is not persuasive, particularly not to a level necessary to prevail in a motion for summary judgment.

     KCCA also lost its chance to resolve this case short of trial.  Because Mr. Esau stated under oath that the amount of Invoice No. 571080 is $168.69, it is logical to assume that KCCA has its copy of the Invoice.  KCCA has yet to submit its copy, even though it presumably is available on Pohnpei, not Richmond, California.  In short, counsel for both sides are responsible for extending this litigation well beyond what the original difference of $20.80 could conceivably merit.

III.  Conclusion
     Because of the evidentiary shortcomings in Richmond's submission, its Supplemental Motion for Summary Judgment is denied.  As there is no summary judgment, the Motion for Entry of Judgment is also denied.
1.  As noted in previous orders, the difference in the disputed invoices is $20.80. But because of additions to the principal and compounding interest, that difference grew to the total disputed amount of $1,039.99.