KOSRAE STATE COURT TRIAL DIVISION
Cite as Livaie v. Weilbacher, 13 FSM Intrm. 249 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 249]

HAIROM E. LIVAIE,

Plaintiff,

vs.

BAOBAO WEILBACHER and WHITESAND

CONSTRUCTION COMPANY,

Defendants.

CIVIL ACTION NO. 95-02

ORDER DENYING MOTION TO ALTER JUDGMENT

OR FOR A NEW TRIAL ON RESTITUTION

Yosiwo P. George

Chief Justice

Decided: May 17, 2005

APPEARANCES:

For the Plaintiff:   Canney L. Palsis, Esq.

                                  Micronesian Legal Services Corporation

                                  P.O. Box 38

                                  Tofol, Kosrae   FM   96944

For the Defendants:   Chang B. William

                                         Kosrae Legislature

                                          P.O. Box 187

                                         Tofol, Kosrae   FM   96944

[13 FSM Intrm. 250]

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HEADNOTES

Evidence

     When the defendants had the burden of proof to establish their claim for damages in an amount different than that presented by the plaintiffs, but failed to present any witnesses or other evidence to contradict or modify the calculations presented by the plaintiffs, the court cannot jump to an inference when the underlying testimony does not support the inference. Livaie v. Weilbacher, 13 FSM Intrm. 249, 251 (Kos. S. Ct. Tr. 2005).

Civil Procedure; New Trial; Judgments; Alter or Amend Judgment

     The defendants have not presented adequate grounds to support their motion to alter judgment or for a new trial when there has been no manifest error of law or fact made by the court in its memorandum and judgment and when there has been no newly discovered evidence presented by the defendants in support of their motion. Livaie v. Weilbacher, 13 FSM Intrm. 249, 251 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On April 28, 2005, Defendants filed a Motion to Alter Judgment, or in the Alternative, to Allow New Trial on the Issue of Restitution. Plaintiff filed an Opposition on May 2, 2005. The Court enters its ruling on the Defendantsí Motion without hearing, pursuant to GCO 1998-6.

     On February 3, 2005, the Appellate Division of the FSM Supreme Court entered its Opinion and Judgment in the appeal, remanding this matter for a new determination of damages. The Courtís initial determination of damages was vacated by the Appellate Division, based upon its conclusion that this Courtís calculations of damages were not based upon evidence submitted at trial. Specifically, the Appellate Division set aside this Courtís finding that 25% of the excavated fill had been actually hauled from Saolung Quarry and utilized for the road construction. The Appellate Division found that the only statement made with respect to the 25% figure was by Defendant Weilbacher during closing arguments. These statements by Defendant Weilbacher were found not to be properly in evidence before this Court and therefore improperly relied upon during this Courtís initial determination of damages. [Livaie v. Weilbacher, 13 FSM Intrm. 139, 143-44 (App. 2005).]

     Pursuant to the remand instructions, this Court held an evidentiary hearing on April 14, 2005, and allowed both parties to present evidence in support of their claims for determination of damages. At that hearing, both parties stipulated to the evidence relating to damages which had been submitted to this Court at the June 2003 trial. In addition, at the April 14, 2005 hearing, the Plaintiff presented testimony of Vanston Wakuk and Sepe Anderson in support of his claim for damages.

     The Defendants were also provided the opportunity to present witnesses in support of its claim for damages, but did not do so. The Defendants were specifically given the opportunity to present testimonial or documentary evidence in support of their claim that only 25% or a portion of the excavated materials were actually hauled and used for the road construction, and that this percentage should form the basis for damages. However, the Defendants failed to present any witnesses or any other admissible evidence at the April 14, 2005 hearing on their claimed damages. Defendant relied

[13 FSM Intrm. 251]

upon prior testimony presented at the June 2003 trial to support their claim that only a portion of the fill removed from the quarry was actually hauled and used for the road construction, that that this portion should be the basis for the damages calculations. This Court must reject the Defendantsí argument, in applying the findings of the Appellate Division that the Defendantsí statements made at trial are not evidence properly before this Court, and therefore cannot be used as evidence to support their damages claim. Defendant cannot now rely upon and this Court cannot accept those statements which have been clearly rejected by the Appellate Division.

     In their Motion to Alter Judgment, Defendants specifically relied upon the testimony of Mr. Lorenzo Sovilla, Plaintiffís expert witness, presented at the June 2003 trial. Motion at 3-4. Defendants rely upon Mr. Sovillaís testimony that the volume of material "taken down from hill" was 3,040 cubic yards. Mr. Sovilla further testified that he calculated the amount of materials that "were cut" or removed from the hillside. Mr. Sovilla testified that he did not see any new landfill around the hillside area. Mr. Sovilla testified that he did not know whether any removed materials had been used for "something else" : a purpose other than the road construction. Mr. Sovilla was not questioned regarding the amount of fill materials that were hauled from the site. Mr. Sovilla did not present any testimony regarding the amount of fill material that had been hauled from the quarry.

     Defendantsí suggest that this Court infer from Mr. Sovillaís testimony that only a percentage of the material removed from the hill was actually hauled from the quarry. Defendantís suggestion must be rejected. The testimony of Mr. Sovilla did not establish that any particular percentage of removed materials were hauled from the quarry, left at the quarry, or used for a purpose other than the road construction. This Court cannot jump to an inference where the underlying testimony does not support the inference. Defendants had the burden of proof to establish their claim for damages in an amount different than that presented by the Plaintiffs. At the April 2005 hearing, Defendants failed to present any witnesses or other evidence to contradict or modify the calculations presented by Mr. Sovilla at the June 2003 trial.

     Careful review of the record from the June 2003 trial and the April 14, 2005 hearing reveals that the only reference to the 25% figure remains the Defendantsí closing arguments at the June 2003 trial. Therefore, the Defendantsí argument that only 25% of the excavated materials were hauled and used remained just argument, unsupported by evidence properly before this Court. Pursuant to the remand instructions from the Appellate Division, without any testimonial or documentary evidence presented by the Defendants at the April 14, 2005 hearing, this Court could not consider the Defendantsí argument on the 25% figure. Thus, the only evidence properly before this Court on the amount of damages for removal of fill materials from Saolung Quarry remained that of Mr. Lorenzo Sovilla, as presented at the June 2003 trial. Defendants do not dispute Mr. Sovillaís calculations that 3,040 cubic yards of fill were removed or excavated from the hillside at the quarry.

     Accordingly, pursuant to the remand instructions entered by the FSM Supreme Court, Appellate Division, Opinion and Judgment entered on February 3, 2005, based upon the evidence presented at trial of this matter in June 2003 and at the hearing on April 14, 2005, I concluded that the Plaintiff is entitled to restitution from the Defendant for $800 for Palusrik landfilling costs and for $6,080 for the market value of the removed and excavated materials, for a total damage award of $6,880. Judgment was entered concurrently in that amount.

     The Defendants have not presented adequate grounds to support their Motion to Alter Judgment or for a New Trial, pursuant to Kos. Civ. R. 59. There has been no manifest error of law or fact made by this Court in its Memorandum on Award of Damages and Judgment entered on April 20, 2005. There has been no newly discovered evidence presented by the Defendants in support of their Motion. Accordingly, Defendantsí Motion to Alter Judgment or in the Alternative for New Trial on Restitution

[13 FSM Intrm. 252]

is denied.

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