Gregory v. Frazer, C.A. No. 2007-09-492 (Del.Gen.Sess. 10/2/2009)
| Decision Date | 02 October 2009 |
| Docket Number | C.A. No. 2007-09-492. |
| Parties | CATHERINE M. GREGORY, Plaintiff v. BRANDON R. FRAZER, Defendant, Third-Party Plaintiff v. NICOLE M. FRAZER, Third-Party Defendant |
| Court | Court of General Sessions of Delaware |
Thomas C. Marconi, Esquire, Wilmington, Delaware, Attorney for Plaintiff and Third-Party Defendant.
Maggie Clausell, Esquire, Dover, Delaware and Robert M. Goode, Esquire, Tigard, Oregon, Attorneys for Defendant and Third-Party Plaintiff.
DECISION AFTER TRIAL
This is a breach of contract/debt action. Catherine M. Gregory ("Plaintiff") contends she allowed Brandon R. Frazer ("Defendant") to use her Reader's Digest Credit Card ("Credit Card") for his business expenses during a period when Defendant was married to Plaintiff's daughter and he was starting a new business. Plaintiff seeks re-payments of amounts she paid on the Credit Card which Plaintiff attributes to Defendant's business expenses. Although Defendant filed a third-party complaint against his ex-wife Nicole M. Frazer ("Third-Party Defendant"), no evidence was presented at trial regarding the third-party claim.
Trial was held on July 13, 2009, and the Court reserved decision. The parties submitted post-trial proposed findings of fact and conclusions of law. This is the Court's decision granting relief to Plaintiff in the amount of $22,750.41 plus post-judgment interest.
At the start of the trial, Defendant moved for dismissal pursuant to Court of Common Pleas Civil Rule 12(b)(2) for a lack of personal jurisdiction and Court of Common Pleas Civil Rule 12(b)(3) for improper venue. Defendant lives in Wisconsin. Under the circumstances, the Court declined to dismiss Plaintiff's lawsuit. Plaintiff also presented a Motion in Limine seeking to limit Defendant's factual presentation.
First, pursuant to Court of Common Pleas Civil Rule 12(h), the Court held that the affirmative defense of lack of personal jurisdiction is waived if not presented in the responsive pleading or a timely amendment thereto, or prior to filing a responsive pleading. Since Defendant failed to assert the defense of lack of personal jurisdiction when he filed his answer to the complaint, and also because he participated in the litigation, he subjected himself to the jurisdiction of the Court without challenging said jurisdiction. The defense of lack of personal jurisdiction was therefore waived.
Second, the Court held that dismissal for improper venue is appropriate only when the moving party has demonstrated with particularity that being required to litigate in Delaware would subject the party to overwhelming hardship.1 The Court found that Defendant did not meet this burden of proof to demonstrate hardship, as he participated fully in pre-trial proceedings including significant discovery.
Finally, the Court reserved judgment on Plaintiff's Motion in Limine. Plaintiff sought to preclude Defendant from offering testimony at trial indicating that someone other than himself was responsible for the charges set forth in the Reader's Digest Credit Card Statements ("Credit Card Statements"). According to Plaintiff, Defendant took the position during discovery that he didn't know who was responsible for certain charges reflected on the Credit Card Statements. Thus Plaintiff requested the Court prohibit Defendant from taking a different position at trial regarding any of the charges on the Credit Card Statements. The Court noted that, in the absence of a jury, it would be appropriate to address admissibility of Defendant's evidence on an as-need basis during the presentation of Defendant's case. It was not necessary to address any such limitations on testimony because no such rulings were sought during trial.
Defendant and Third-Party Defendant were married in December 1999. In 2002, the couple moved from Wisconsin to Delaware. While in Delaware, Defendant was employed by a construction company but had ambitions to become self-employed. In March 2002 Defendant discussed his ambitions with Plaintiff, then his mother-in-law, at the Touchdown Lounge in Dover, Delaware. Defendant did not have the start-up capital or professional network to start his own business. Plaintiff had worked for the State of Delaware Housing Authority for 23 years. She was willing to support Defendant's start-up venture by introducing him to persons in the construction industry and helping finance the venture. Defendant quit his construction job after a year to start his own company.
Plaintiff and Defendant entered into an agreement whereby Plaintiff would loan funds to Defendant for his business expenses by granting him use of her Credit Card. The agreement was that Defendant would be added to the Credit Card account as an authorized user and would be responsible to repay all charges he made on the Credit Card, as well as any applicable interest. Defendant does not dispute this was the agreement.
When Defendant and Third-Party Defendant filed for divorce in December 2006, Plaintiff terminated Defendant's use of the Credit Card. Plaintiff has since payed the entire account balance in full and seeks reimbursement from Defendant consistent with their agreement. Plaintiff testified at trial that she and her husband refinanced their family home in order to repay the debt accumulated on the account. Plaintiff further testified she paid the Credit Card debt in full on September 17, 2007.
Plaintiff seeks to be reimbursed for charges attributed to Defendant on the Credit Card for the period March 2005 through December 2006. After Defendant and Third-Party Defendant moved back to Wisconsin in 2003, Plaintiff alleges that Defendant charged $22,493.93 on the Credit Card pursuant to the agreement. Plaintiff further alleges Defendant has made only $900.00 in payments to her, through three money orders each worth $300.00.2 Plaintiff does not seek any of the charges made by Third-Party Defendant, or made jointly by Defendant and Third-Party Defendant.3 Plaintiff claims that Defendant owes her $26,142.74: $22,493.93 for Credit Card charges, plus $3,648.81 in finance charges. Plaintiff also seeks prejudgment and post-judgment interest.
Defendant acknowledges he entered into an agreement with Plaintiff in which he would use the Credit Card for business expenditures and would repay her for any charges he made using the Credit Card for his business, as well as any applicable interest. On the other hand, Defendant denies he owes an outstanding debt to Plaintiff. Rather, according to Defendant, he has already made numerous payments to Plaintiff and has repaid her for his Credit Card charges. At trial, Defendant testified that after selling the house in Delaware which he and the Third-Party Defendant owned, he gave $15,000.00 in cash to Third-Party Defendant to be paid to Plaintiff to repay the debt on the Credit Card in full. Defendant also testified he gave Third-Party Defendant $400.00 in cash every month to give to Plaintiff as payment for the Credit Card debt between April of 2005 and December of 2006. Finally, Defendant testified that he disputed four separate charges on the Credit Card Statements, totaling $288.90.4
To establish a prima facie case of breach of contract, the Plaintiff must prove each of three elements by a preponderance of the evidence: (1) the plaintiff must show that a contract existed; (2) the plaintiff must establish that the defendant breached an obligation imposed by the contract; and (3) the plaintiff must prove damages as a result of the Defendant's breach.5 The first element is satisfied because Defendant concedes there was an agreement between himself and Plaintiff, whereby he was permitted to use the Credit Card and was responsible for re-payment of his charges plus interest. There is a dispute regarding the second and third elements, whether there was a breach and whether damages are due and owing.
As a threshold matter, the Court rejects Defendant's contention that the Delaware Statute of Frauds prevents recovery by Plaintiff because the contract was not reduced to writing. The Statute of Frauds requires that certain agreements be in writing, and acts to preclude recovery in certain situations where an oral agreement will not be enforceable as the risk of fraudulent conduct may exist. According to the Statute of Frauds, a contract that, by its terms, cannot be completed within one year of its making must be in writing. The Delaware Statute of Frauds states, in pertinent part No action shall be brought to charge any person ... upon any agreement that is not to be performed within the space of one year from the making thereof... unless the contract is reduced to writing, or some memorandum, or notes thereof, are signed by the party to be charged therewith...6
The Delaware Statute of Frauds does not preclude Plaintiff from recovery of the charges made by Defendant on the Credit Card pursuant to the agreement. The agreement made between the two parties in March of 2002 could have been completed within one year. Thus, the Delaware Statute of Frauds does not act as a bar against recovery for Plaintiff.
On the other hand, the doctrine of judicial estoppel is applicable and does act as a bar to Defendant's position that he does not owe money to the Plaintiff under the contract. Judicial estoppel precludes a party from asserting a position that is inconsistent with a position previously taken in the same or an earlier legal proceeding.7 The doctrine is meant to protect the integrity of the judicial proceedings.8
Defendant filed a "Financial Disclosure Statement" in connection with his divorce proceedings with Third-Party Defendant in the Family Court of Wisconsin. ("Disclosure Statement")9 Under oath, Defendant acknowledged a debt of $17,000.00 to Plaintiff in the form of a loan under the subsection titled "Debts and Obligations." Therefore,...
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