CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Miochy v. Chuuk Election Commission, et al., 15 FSM Intrm. 426 (Chk. App. 2007)

[15 FSM Intrm. 426]

REDLINO MIOCHY,

Petitioner,

vs.

CHUUK STATE ELECTION COMMISSION,

Respondent,

ONGICHY SOICHY,

Real Party in Interest.

CIVIL APPEAL CASE NO. 09-2007

ORDER DENYING PETITION FOR REHEARING

Decided:  November 9, 2007

BEFORE:

Hon. Keske S. Marar, Associate Justice, Presiding

Hon. Dennis K. Yamase, Temporary Justice*

Hon. Frank Casiano, Temporary Justice**
 

*Associate Justice, FSM Supreme Court, Pohnpei

**Attorney at Law, Weno, Chuuk
 

APPEARANCE:

For the Petitioner: Keichiro G. Dawe

                              P.O. Box 481

                              Weno, Chuuk FM 96942


 

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HEADNOTES

Appellate Review ) Rehearing; Civil Procedure ) New Trial

      When a petition for a rehearing is based on the courtís ruling in a trial de novo, the petition is analogous to a motion for a new trial under the Chuuk Civil Rules of Procedure. The only legal grounds for a new trial are when there is a manifest error of law or fact, or for newly discovered evidence. A motion for a new trial will be denied when the movant has not identified any manifest error of law or fact or any newly discovered evidence. Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 426, 428 (Chk. S. Ct. App. 2007).

Civil Procedure ) New Trial

      When the parties were afforded a full hearing and the court considered all evidence on the record in reaching its decision, it is not a manifest error of fact requiring a new trial that certain evidence that

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parties felt was compelling was not recited in the courtís decision or given the weight they thought proper, and, if for some reason, a party is unable to produce relevant evidence at the time set for trial, the problem should be brought to the courtís attention before the trial has begun. Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 426, 428 & n.1 (Chk. S. Ct. App. 2007).

Civil Procedure ) New Trial

      When no valid reason was given why a party was unable to present particular evidence at trial, it will not be considered "newly discovered." The reason for only allowing a rehearing where there is bona fide newly discovered evidence is that the court cannot afford litigants the opportunity to try again and again, on a hit and miss basis, to present evidence upon a particular issue. Thus, when no valid reason is given for failing to produce evidence at trial and no new evidence is presented that was located after the close of trial, it will not be fruitful to plow the same ground again, and a motion for a new trial will be denied. Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 426, 428 (Chk. S. Ct. App. 2007).

Civil Procedure ) New Trial

      When the only discernable bases for a petition for a new trial are that the court should have been more persuaded by the evidence the petitioner submitted and that he could have submitted other evidence if he had known it would have been persuasive and that the court should have helped him discover evidence supporting his case, none of these bases qualifies as either a manifest error of law or fact or "newly discovered" evidence, and the petitionerís motion for a new trial will be denied since he is asking that the court give him another trial because his counselor did not present all the available evidence in the first trial. Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 426, 429 (Chk. S. Ct. App. 2007).

Attorney and Client; Civil Procedure ) New Trial

      It is not the province of the court to prepare a partyís case but that of counsel. Clients must be held accountable for their attorneysí acts or omissions. Parties who freely choose their attorneys should not be allowed to avoid the ramification of the acts or omissions of their chosen counsel because to grant relief in such circumstances would penalize the nonmoving party for the conduct of the moving partyís counsel. Miochy v. Chuuk State Election Commín, 15 FSM Intrm. 426, 429 (Chk. S. Ct. App. 2007).

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COURTíS OPINION

KESKE S. MARAR, Associate Justice:

      This election contest appeal came before the court for trial on October 5, 8 and 9, 2007 pursuant to sections 130 and 131 of the Chuuk Election Code. On October 9, 2007, after the parties completed the presentation of their cases, the court took the case under advisement. On October 12, 2007, the court issued its opinion denying the relief sought by Petitioner Redlino Miochy and entered a judgment in favor of Respondents Chuuk State Election Commission and Respondent/Real Party in Interest Ongichy Soichy. On October 22, 2007, Miochy filed his petition for a rehearing pursuant to Appellate Rule 40(a).

I.  Miochyís Petition for Rehearing/motion for Reconsideration

      In its opinion, the court found that Miochy failed to meet his burden of proof to demonstrate by a preponderance of the evidence that he met the age requirement to run in the Oneisom deputy mayoral

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election. Because it was a trial de novo, the parties had the opportunity to present to the court any relevant, admissible evidence and were encouraged to do so by the court.

      In his petition for rehearing, Miochy avers that a rehearing is warranted because the Appellate Court has "overlooked the facts" that support his claim. These "facts" include Miochyís belief that a letter attesting to a documentís authenticity would be as persuasive to the court as the actual document, Petition ∂ 3, Miochyís speculation that documents may have been removed to prevent him from obtaining them for trial, id. ∂∂ 4, 5, Miochyís belief that other documents that support his claim exist and could be obtained, id. ∂∂ 4, 7, and Miochyís explanation as to why certain documents werenít produced at trial, which was apparently due to his assumption that the court would order the production of the relevant documents supporting Miochyís claim through its subpoena power, id. ∂ 7.

II.  The Law

      Because Miochyís "petition for a rehearing" is based on the courtís ruling in a trial de novo, his petition is analogous to a motion for a new trial under the Chuuk Civil Rules of Procedure, Chuuk Civil Rule 59. See Cholymay v. Chuuk State Election Commín, 10 FSM Intrm. 145, 155 (Chk. S. Ct. App. 2001) (applying Rules of Civil Procedure by analogy where appropriate in election contest trial de novo). A motion for a new trial must be served not later than 10 days after the entry of the judgment. Chk. Civ. R. 59(b). The only legal grounds for a new trial are when there is a manifest error of law or fact, or for newly discovered evidence. Chk. Civ. R. 59(a). A motion for a new trial will be denied when the movant has not identified any manifest error of law or fact or any newly discovered evidence. Farata v. Punzalan, 11 FSM Intrm. 175, 177 (Chk. 2002).

      With respect to the first bais for a new trial, for a manifest error of law or fact, "[i]t is not a manifest error of fact requiring a new trial that certain evidence that parties felt was compelling was not recited in the courtís decision or given the weight they thought proper, when the parties were afforded a full hearing and the court considered all evidence on the record in reaching its decision. Conrad v. Kolonia Town, 8 FSM Intrm. 215, 217 (Pon. 1997).

      With respect to the second basis for granting a new trial, for "newly discovered" evidence, where there is no valid reason given why a party was unable to present particular evidence at trial, it will not be considered "newly discovered." FSM v. Kansou, 14 FSM Intrm. 273, 276 (Chk. 2006) (citing FSM v Tipen, 1 FSM Intrm. 79, 94 (Pon. 1982); see also Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994) (Failure of counsel to exercise due diligence in searching for "newly discovered" evidence is "sufficient and independent grounds for denial of motion."). The reason for only allowing a rehearing where there is bona fide newly discovered evidence is that the court "cannot afford litigants the opportunity to try again and again, on a hit and miss basis, to present evidence upon a particular issue." Tipen, 1 FSM Intrm. at 94. Thus where no valid reason is given for failing to produce evidence at trial and no new evidence is presented that was located after the close of trial, "it will not be fruitful to plow the same ground again" and a motion for a new trial will be denied. Kansou, 14 FSM Intrm. at 276.

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III.  Application of Law to Facts

      Miochyís petition for rehearing, filed within ten days of service of the courtís opinion and judgment, was timely filed. Miochyís petition, however, does not identify any manifest error of law or fact or present any "newly discovered evidence" that could not have been produced at trial. The only discernable bases for Miochyís petition are that the court should have been more persuaded by the evidence he submitted, Miochy could have submitted other evidence if he had known it would be persuasive and that the court should have helped him discover evidence supporting his case. None of these bases qualifies as either a manifest error of law or fact or as "newly discovered" evidence.

      In essence, Miochy is requesting that the court give him another trial because his counselor did not present all the available evidence in the first trial. If there were issues regarding production of evidence, these should have been addressed in the form of a request for a discovery order. See FSM v Tipen, 1 FSM Intrm. 79 (Pon. 1982). It may bear mention that within the constraints of the adversarial process, it is not the province of the court to prepare a partyís case but that of counsel. Clients must be held accountable for their attorneysí acts or omissions. Amayo v. MJ Co., 10 FSM Intrm. 371, 381-82 (Pon. 2001). Parties who freely choose their attorneys should not be allowed to avoid the ramification of the acts or omissions of their chosen counsel. Id. To grant relief in such circumstances would penalize the nonmoving party for the conduct of the moving partyís counsel. Id.

IV.  Conclusion

      Accordingly, Redlino Miochyís petition for rehearing is denied.

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Footnotes:

1.  If for some reason, a party is unable to produce relevant evidence at the time set for trial, the problem should be brought to the attention of the court before the trial has begun. See FSM v Tipen, 1 FSM Intrm. 79, 94 (Pon. 1982).

2.  The court notes that Miochy has not attached to his petition any evidence that was not submitted at trial or an affidavit attesting to the existence of any newly discovered evidence. See Stinnett v. Weno, 8 FSM Intrm. 142, 146 (Chk. 1997) ("The material submitted with the motion cannot be considered newly discovered evidence. Weno does not present an affidavit concerning its previous unavailability. It only represents that the material was Ďpreviously unavailable.í").

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