CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as Narruhn v. Aisek
13 FSM Intrm. 97 (Chk. S. Ct. App. 2004)

[13 FSM Intrm. 97]

ALEX NARRUHN, ATENY INCHING, and
ANNA REYES,
Appellants,
 
vs.
 
GRADVIN AISEK,
Appellee.
 
APPEAL CASE NO. 03-2000
 
OPINION
 
Argued: October 26, 2004
Decided: December 28, 2004

BEFORE:

Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court, Presiding
Hon. Dennis K. Yamase, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**
 
*Associate Justice, FSM Supreme Court, Weno, Chuuk
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants:               Stephen V. Finnen, Esq.
                                              Law Offices of Saimon & Associates
                                              P.O. Box 1450
                                              Kolonia, Pohnpei FM 96941
 
For the Appellee:                Craig D. Reffner, Esq.
                                             Law Office of Fredrick L. Ramp
                                             P.O. Box 1480
                                             Kolonia, Pohnpei FM 96941

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[13 FSM Intrm. 98]

HEADNOTES

Appellate Review ) Standard of Review
     A review of the trial courtís factual findings is done under the "clearly erroneous" standard and the appellant has the burden to clearly demonstrate error in the trial courtís findings. The appellant has a very strong burden to overcome for the reason that the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnessesí credibility. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).
 
Appellate Review ) Standard of Review
     Any of three conditions are required for the court to find reversible error when the trial court findings are alleged to be clearly erroneous: first, if the trial court findings were not supported by substantial evidence in the record; second, the trial courtís factual finding was the result of an erroneous conception of the applicable law; and third, if the appellate court is of firm conviction that a mistake has been made. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).
 
Torts ) Damages
     When improvements were made by a plaintiff for his own benefit to what the trial court ruled was his own property, the defendants are not liable for the improvements. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).
 
Torts ) Damages
     The rule is well settled that to authorize damages for pain and suffering, such must be the result of physical injury. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).
 
Torts ) Damages; Torts ) Infliction of Emotional Distress
     For an emotional distress award there must be a foreseeable physical manifestation of the distress. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).
 
Torts ) Damages; Torts ) Infliction of Emotional Distress
     When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, an award of damages for pain and suffering must be set aside. Narruhn v. Aisek, 13 FSM Intrm. 97, 99 (Chk. S. Ct. App. 2004).

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COURTíS OPINION

KESKE S. MARAR, Presiding Justice:

     This is an appeal from a judgment of the Chuuk State Supreme Court Trial Division in an action arising out of a dispute over title to real estate known as Fonomu. The only issue necessary to resolve the appeal is whether the evidence is sufficient to support the trial judgeís findings of fact that the property in question is owned by the Appellee, Gradvin Aisek. As stated in the opening sentence of Appellantís brief: "Primarily this appeal involves a review of the findings of fact by the trial court and a determination [of whether] such findings of fact are clearly erroneous."

     As indicated in Appellantsí brief, this Court has consistently held that a review of the trial courtís factual findings is done under the "clearly erroneous" standard. Moreover, this Courtís decisions on the issue have likewise been that the Appellant has the burden to clearly demonstrate error in the trial courtís findings.

[13 FSM Intrm. 99]

     The leading case on the subject is Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 19 (Chk. S. Ct. App. 1994), where the court stated that the appellant has "a very strong burden to overcome" for the reason "that the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnessesí credibility."

     Any of three conditions are required for this court to find reversible error in this case: first, if the trial court findings were not supported by substantial evidence in the record; second, the trial courtís factual finding was the result of an erroneous conception of the applicable law; and third, if the appellate court is of firm conviction that a mistake has been made. Id. at 560-61, 1 CSR at 19. On review of the record, we are not prepared to conclude that the trial courtís rulings are contrary to any of the criteria listed. We find no error of the trial court in this regard.

     The trial court awarded damages to the plaintiff, Gradvin Aisek, for miscellaneous expenses that appear to be improvements to the property at issue. Since such improvements were made by the plaintiff to what the trial court ruled was his own property for his own benefit, the defendants are not liable for them.

     Aisek also sought damages for his "emotional distress" and the trial court awarded substantial damages for his "pain and suffering." The rule is well settled that to authorize damages for pain and suffering, such must be the result of physical injury. See 22 Am. Jur. 2d Damages ß 483, at 562 (1988). If the "pain and suffering" award was actually a misnamed award for the emotional distress that was pled, it is also well settled that for an emotional distress award there must be a foreseeable physical manifestation of the distress. Eram v. Masaichy, 7 FSM Intrm. 223, 226-27 (Chk. S. Ct. Tr. 1995). There is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress.

     Therefore, the award of damages must be set aside.

     Accordingly, the trial court judgment is affirmed in part and reversed in part.

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