Chuuk Public Utility Corporation v Rain [2020] FMCSC 4; 22 FSM R. 612 (Chk. S. Ct. App. 2020) (23 July 2020)

CHUUK STATE SUPREME COURT APPELLATE DIVISION
CIVIL APPEAL NO. 01-2018

CHUUK PUBLIC UTILITY CORPORATION,
Appellant,

vs.

SIGFRIT RAIN,
Appellee.
__________________________________________

OPINION

Argued: June 10, 2020
Decided: July 23, 2020

BEFORE:

Hon. Jayson Robert, Associate Justice, Presiding
Hon. Larry Wentworth, Temporary Justice*
Hon. Bethwell O’Sonis, Temporary Justice**

*Associate Justice, FSM Supreme Court
**Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellant: Maximo Mida, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Appellee: Daniel Rescue, Jr., Esq.
Micronesian Legal Services Corp.
P.O. Box D
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Appellate Review - Standard - Civil Cases - De Novo; Civil Procedure - Summary Judgment
The appellate court uses the same standard to review a grant or denial of a summary judgment motion that the trial court initially used. Thus, if the appellate court concludes that a genuine issue of material fact was present, then it must rule that the summary judgment should have been denied; and if it concludes that a genuine issue is not present, then, viewing the facts in the light most favorable to the nonmovant, it will rule de novo on whether the movant was entitled to judgment as a matter of law. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 618 (Chk. S. Ct. App. 2020).

Appellate Review - Standard - Civil Cases - Abuse of Discretion
An abuse of discretion occurs when 1) the court’s decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court’s findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision, and a judge abuses his discretion when his action violates a litigant’s right to due process because such action is clearly unreasonable. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 618-19 (Chk. S. Ct. App. 2020).

Appellate Review - Standard - Civil Cases - De Novo; Appellate Review - Standard - Civil Cases - Factual Findings
Since an appellate court does not set aside findings of fact unless they are clearly erroneous, it starts its review of a trial court’s factual findings by presuming the findings are correct, and, if it determines that substantial evidence supports the trial court findings, it will not disturb those factual findings on appeal. But even then, if the appellate court does not disturb the facts, as found, it must ask whether those factual findings are sufficient to meet the plaintiff’s burden of proof. Since the trial court’s answer to that question is a legal conclusion and thus a ruling on a point of law, the appellate court reviews that conclusion de novo. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 619 (Chk. S. Ct. App. 2020).

Civil Procedure - Summary Judgment - Procedure
In ruling on a summary judgment motion, a court considers the pleadings, depositions, answers to interrogatories, admissions and affidavits that are present in the file although not all of these items need to be present for a court to grant summary judgment. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 619 (Chk. S. Ct. App. 2020).

Civil Procedure - Summary Judgment - Procedure

The summary judgment movant bears the initial burden of establishing the absence of genuine triable issues of material fact, and, if the movant does not have the burden of proof at trial, it may carry its initial burden by producing evidence negating an essential element of the non-movant’s case, or, after suitable discovery, the movant may show that the non-movant does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. Even then, the court must view the facts presented and inferences therefrom in the light most favorable to the nonmoving party. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 619 (Chk. S. Ct. App. 2020).

Civil Procedure - Summary Judgment - Procedure
Once the movant has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the non-movant then has the burden to show by competent evidence that there is a triable issue of fact and cannot merely deny the summary judgment motion’s allegations but must set forth specific evidence that would be admissible at trial to show that there is a genuine issue for trial. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 619 (Chk. S. Ct. App. 2020).

Civil Procedure - Summary Judgment - Procedure
When the non-movant has not produced any evidence that would be admissible at trial but has promised that he will produce such evidence later, his mere representation that such evidence exists and will be introduced later at trial does not constitute the production of competent evidence. Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 620 (Chk. S. Ct. App. 2020).

Civil Procedure - Summary Judgment - Grounds
Although the summary judgment movant’s lead network operator’s affidavit states that the cause of the problem was not its fault, thus, in the movant’s view, making out a prima facie that there was no triable issue of fact, and the non-movant failed to produce any competent evidence to the contrary, that affidavit is not so conclusive as to entitle the movant to summary judgment because it refers only to the causes of the 2017 backflow, not any of the earlier ones, and, while it stated that the May 31, 2017 backflow was caused by a broken check valve, it did not explicitly state that the check valve was not the movant’s responsibility, although it might (or might not) be read to imply that and because each side argued, based on the check valve’s location, that the other was responsible for it, thus leaving open a genuine issue of material fact. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 620 (Chk. S. Ct. App. 2020).

Torts - Trespass
To prevail in a trespass action, a plaintiff must prove a wrongful interference with his interest in the exclusive possession of the land. But any person in the actual and exclusive possession of the property may maintain the trespass action. Ownership is not a requirement. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 620 (Chk. S. Ct. App. 2020).

Torts - Trespass
When it was undisputed that the plaintiff was in actual and exclusive possession of the land, the plaintiff had standing to maintain a trespass action for alleged intrusions into his right of possession of the land. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 620-21 (Chk. S. Ct. App. 2020).

Torts - Damages; Torts - Trespass
A trespass plaintiff’s failure to proffer any evidence of monetary damages is not fatal to his trespass claim - monetary damages are not an essential element of the trespass tort because, if evidence of actual damages is lacking in a successful trespass action, the trial court will award nominal damages. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 621 (Chk. S. Ct. App. 2020).

Civil Procedure - Joinder and Severance; Torts - Trespass
In a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties. Otherwise, the defendant faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners decide to sue. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 621 (Chk. S. Ct. App. 2020).

Torts - Nuisance
A nuisance cause of action may arise when a defendant has been negligent and that negligence has substantially interfered with the plaintiff’s use and enjoyment of his property. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 621 (Chk. S. Ct. App. 2020).

Torts - Damages; Torts - Nuisance
Diminution of a property’s value is not the sole measure of nuisance damages. Special damages may also be awarded for nuisance. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 621 (Chk. S. Ct. App. 2020).

Torts - Damages; Torts - Nuisance
When the nuisance, or the injury arising from it, is not permanent and has been or can be abated, the plaintiff usually recovers the depreciation in the rental or use value of his or her property during the period in which the nuisance exists, plus any special damages, but rental and use value are not necessarily the same thing, and a plaintiff who actually occupies the premises may recover the "use value," or special value to him or her. Discomfort or inconvenience in the use of the property is, of course, relevant to both establish special damage and as evidence bearing on the loss of rental or use value. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 621 (Chk. S. Ct. App. 2020).

Torts - Damages; Torts - Nuisance
In a nuisance case, the land occupant may recover special damages in addition to the depreciation in market or use value. This commonly includes damages for personal discomfort or illness resulting from the nuisance, and the plaintiff may also recover the reasonable cost of his or her own efforts to abate the nuisance or prevent future injury. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 622 (Chk. S. Ct. App. 2020).

Appellate Review - Decisions Reviewable
When the summary judgment hearing and the trial were run one after the other like it was one proceeding, all blurred together and the defendant had raised during the summary judgment hearing the unfairness of the court considering the evidence the plaintiff was supposed to provide in response to the defendant’s discovery requests, but had not, the issue of whether the plaintiff could use that evidence at trial was preserved for appellate review. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 623 (Chk. S. Ct. App. 2020).

Appellate Review - Decisions Reviewable; Appellate Review - Standard - Civil Cases
When a litigant raises an issue for the first time on appeal, he or she is deemed to have waived the right to challenge the issue unless it involves a plain error that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 623 (Chk. S. Ct. App. 2020).

Civil Procedure - Discovery; Civil Procedure - New Trial; Constitutional Law - Due Process

A new trial will be ordered when the plaintiff admitted during the summary judgment hearing that he had evidence that the defendant had asked for in discovery but which the plaintiff had not produced and which the plaintiff intended to use in trial, it was plain error that was obvious and substantial for the trial court to proceed immediately to trial after denying summary judgment at the hearing’s end because the trial’s fairness and the integrity was seriously affected by the plaintiff’s failure to disclose his trial evidence. The trial court should have, after the summary judgment hearing if not earlier, ordered the plaintiff to disclose the evidence that he said, during the summary judgment hearing, that he intended to use at trial and which had been requested in discovery. The defendant then should have been afforded the time and opportunity to review that evidence and to determine if it needed to conduct further investigation and discovery or how else best to prepare to counter that evidence at trial, and if the defendant did ask to conduct such further discovery, the trial court should have granted it adequate time to do so and continued the trial. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 623-24 (Chk. S. Ct. App. 2020).

Civil Procedure - Discovery
A litigant’s obligation to provide another party with the discovery that it requested does not end when the discovery deadline passes. To hold otherwise would only encourage future bad behavior by counsel and parties. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 624 (Chk. S. Ct. App. 2020).

Torts - Comparative Negligence
Chuuk is a comparative fault or comparative negligence jurisdiction and follows the "pure system" of comparative negligence. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 624 (Chk. S. Ct. App. 2020).

Torts - Comparative Negligence
When the defendant had pled comparative negligence as an affirmative defense, and the issue of who was at fault was tried, the trial court should consider comparative negligence when weighing the evidence about fault. Chuuk Public Utility Corp. v. Rain, 22 FSM R. 612, 624 (Chk. S. Ct. App. 2020).

* * * *

COURT’S OPINION

LARRY WENTWORTH, Temporary Justice:

This appeal is from the trial court’s $30,000 judgment, entered February 27, 2018, in plaintiff Sigfrit Rain’s favor against defendant Chuuk Public Utility Corporation ("CPUC"). We hereby vacate that judgment and remand the matter, with directions, for a new trial. Our reasons follow.

I. BACKGROUND

Sigfrit Rain and his spouse, Siena O. Rain, are, as shown by a certificate of title issued by the Chuuk Land Commission on September 22, 1996, the owners of Lot 60008 (Southfield) and also known as Fanipat or Midway. Rain resides in a home he built there. Starting in November 2006, Rain’s residence experienced recurring sewage backflows.

Rain filed a complaint on September 27, 2010, alleging that CPUC was liable to him for these occurrences. CPUC filed its answer on November 16, 2010. The case then lay dormant until 2017, when the trial court held a status conference and set a schedule. CPUC then made a number of discovery requests.

On August 1, 2017, Rain, with leave of court, filed a first amended complaint. In it, he alleged that the sewage backflows had continued, with the latest one in June 2017, and that those backflows damaged household items, required the purchase of cleaning supplies, made the residence temporarily uninhabitable, and caused him health problems. Rain further alleged that CPUC had admitted to sewer line defects. Rain pled causes of action against CPUC for negligence, a taking without just compensation, trespass, nuisance, personal injury, and negligent infliction of emotional distress. In its August 27, 2017 answer, CPUC denied liability and pled, as affirmative defenses, Rain’s failure to state a claim for which relief could be granted, statute of limitations, comparative negligence, equitable estoppel, Rain’s own conduct, laches, failure to mitigate damages, and that the damages were the result of conditions unrelated to CPUC’s conduct. CPUC replaced a broken check valve in Rain’s sewage pipe in late 2017, and Rain has not suffered any backflows since then,

The parties continued their discovery efforts. CPUC responded to Rain’s discovery requests. CPUC, in its discovery requests, sought from Rain all documents showing that Rain owned Fanipat, that showed the alleged damages to Fanipat, that supported Rain’s claims for monetary damages, and all communications between Rain and CPUC about occurrences and actions alleged in Rain’s complaint. CPUC also sought information about the original value of Rain’s house and land before the backflows started; the factual basis for Rain’s claim that CPUC "permitted" the backflows; the identity of all persons living in Fanipat when the backflow(s) occurred and of all CPUC officials and employees that were contacted about the problem; and all evidence, including documents, affidavits, and statements not in the pleadings that Rain intended to rely on or to submit as evidence during trial.

Rain said he could not produce the discovery requested because he was in Hawaii for medical reasons. Rain, with CPUC’s consent, eventually asked for more time to respond to CPUC’s discovery requests, but, on December 5, 2017, the trial court denied that request.

On January 5, 2018, CPUC filed a motion for summary judgment on all of Rain’s causes of action. Based on Rain’s failure to provide responses to CPUC’s discovery requests, CPUC contended that there was no triable issue about breach of duty, causation, or damages because Rain had not produced any evidence about any damages suffered; because the cause of the backflow(s) was a bad check valve in Rain’s pipeline that Rain himself, and not CPUC, had installed; because Rain had not produced any evidence showing that Rain’s property had diminished in value; because, under Chuuk State Law No. 3-97-05, § 4(o), CPd lawful authority rity to enter Rain’s property; because CPUC had not substantially interfered with Rain’s use and enjoyment of the property; because "personal injury" is not a cognizable cause of action; and because Rain neither alleged nor proved a physical illness resulting from CPUC’s conduct. CPUC supported its motion with an affidavit from its lead network operator, who averred that the backflows had been caused by a broken check valve in Rain’s own sewage pipe blocking the outflow and by a second bathroom that Rain had illegally connected to his sewage line.

Rain filed his response on January 23, 2018. He noted that the trial court had denied him further time to provide discovery responses. He stated that he had, under Civil Procedure Rule 8, adequately pled his case and argued that he did not have to prove his case until trial. He further argued that issues of material fact remained, in particular, who caused, and who was responsible for, the sewage backflows. Rain did not support his opposition with any affidavits or exhibits, but he did contend that there was already enough evidence in the record - the admitted existence of numerous sewage backflows - for a reasonable factfinder to uphold his claim, and thus enough to defeat a summary judgment motion and proceed to trial on the merits.

On the morning of February 6, 2018, the trial court heard argument on CPUC’s summary judgment motion. At that hearing’s end, the trial judge denied CPUC summary judgment on Rain’s negligence, trespass, nuisance, and negligent infliction of emotional distress claims, and granted CPUC summary judgment on Rain’s taking without just compensation and on his personal injury causes of action.

Trial was held that afternoon. Rain and his son testified, as did CPUC’s lead network supervisor. Among other exhibits, Rain introduced as evidence the certificate of title to his property; a copy of a September 11, 2008 letter Rain had sent to the CPUC chief executive officer about sewer spills in his house; and a long hand-written list of personal property that he asserted was destroyed by the sewage backflows and which the list valued at $7,450, and to which was added $20,000 for "punitive damages" and another $20,000 for emotional distress (total $47,450). Written closing arguments were submitted February 21, 2018.

On February 27, 2018, the trial court issued its decision. It held that CPUC was liable on Rain’s negligence, trespass, and nuisance claims, but not on his negligent infliction of emotional distress claim, for which there had been insufficient evidence. The trial court found that CPUC was negligent for failing to repair a faulty check valve on Rain’s property for over ten years; that CPUC had a duty to repair sewage line defects within a reasonable time; that CPUC’s failure to detect and repair the faulty check valve was the proximate cause of the sewage backflows; that there was no evidence that Rain, or anyone else, had tampered with that valve after CPUC had installed it; that the recurring backflows interfered with Rain’s possessory interest in his home, thus constituting a trespass by CPUC; and that this also caused a nuisance to Rain. The trial court awarded Rain the $7,450, that he had asked for, for personal property damage and a further $22,550 for CPUC’s continued trespass and nuisance, for a total of $30,000.

CPUC timely appealed.

II. ISSUES PRESENTED

CPUC contends that:

1) the trial court erred by denying in part CPUC’s summary judgment motion;

2) the trial court abused its discretion by allowing Rain to submit evidence at trial that CPUC had sought in discovery but which Rain failed to produce;

3) there was insufficient evidence to support the trial court’s judgment; and

4) the evidence was insufficient to support with reasonable certainty the amount of the trial court’s damages award.

III. STANDARD OF REVIEW

In reviewing CPUC’s first issue, we use the same standard for the grant or denial of a summary judgment motion that the trial court initially used. Kama v. Chuuk, 20 FSM R. 522, 528 (Chk. S. Ct. App. 2016). Thus, if we conclude that a genuine issue of material fact was present, then we must rule that the summary judgment should have been denied; and if we conclude that a genuine issue is not present, then, viewing the facts in the light most favorable to the nonmovant, we will rule de novo on whether the movant was entitled to judgment as a matter of law. Id.

In reviewing CPUC’s second issue (that the trial court abused its discretion), we use the usual abuse of discretion standard. An abuse of discretion occurs when 1) the court’s decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court’s findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision, and a judge abuses his discretion when his action violates a litigant’s right to due process because such action is clearly unreasonable. Kama v. Chuuk, 10 FSM R. 593, 598 (Chk. S. Ct. App. 2002).

CPUC’s third and fourth issues concern the sufficiency of the evidence before the trial court. Since we do not set aside findings of fact unless they are clearly erroneous, we start the review of a trial court’s factual findings by presuming the findings are correct, and, if we determine that substantial evidence supports the trial court findings, we will not disturb those factual findings on appeal. Peter v. Jessy, 17 FSM R. 163, 171 (Chk. S. Ct. App. 2010). Even then, if we do not disturb the facts, as found, we must ask whether those factual findings are sufficient to meet the plaintiff’s burden of proof. Id. at 175. Since the trial court’s answer to that question is a legal conclusion and thus a ruling on a point of law, we review that conclusion de novo. Id.

IV. ANALYSIS

CPUC raises its four assignments of error in sequence. That is, if CPUC prevails on its first assignment of error - that it should have been granted summary judgment on all claims - then the rest of its issues are irrelevant because we would then reverse the trial court judgment and order a judgment entered in CPUC’s favor. But if Rain prevails on that issue, then we should consider CPUC’s second issue. If CPUC prevails on the second issue, then the third and fourth issues would become moot because we would vacate the trial court judgment and order that CPUC be granted a new trial. If Rain prevails on the first two issues, then we should consider CPUC’s third issue, and if Rain prevails on that issue, then we would consider CPUC’s fourth issue. We will proceed in that manner.

A. CPUC’s Summary Judgment Motion

CPUC contends that it should have prevailed on its summary judgment motion because Rain did not submit any competent evidence in opposition to its motion.

1. Summary Judgment Principles

In ruling on a summary judgment motion, a court considers the pleadings, depositions, answers to interrogatories, admissions and affidavits that are present in the file although not all of these items need to be present for a court to grant summary judgment. Kama v. Chuuk, 18 FSM R. 326, 330-31 (Chk. S. Ct. Tr. 2012); K&I Enterprises v. Francis, 15 FSM R. 414, 418 (Chk. S. Ct. Tr. 2007). The summary judgment movant bears the initial burden of establishing the absence of genuine triable issues of material fact, and, if the movant does not have the burden of proof at trial, it may carry its initial burden by producing evidence negating an essential element of the non-movant’s case, or, after suitable discovery, the movant may show that the non-movant does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. Kama, 18 FSM R. at 331. Even then, the court must view the facts presented and inferences therefrom in the light most favorable to the nonmoving party. Narruhn v. Chuuk State Election Comm’n, 18 FSM R. 649, 651 (Chk. S. Ct. Tr. 2013); Dereas v. Eas, 12 FSM R. 629, 632 (Chk. S. Ct. Tr. 2004).

Once the movant has made out a prima facie case that there are no triable issues of fact and that it is entitled to summary judgment as a matter of law, the non-movant then has the burden to show by competent evidence that there is a triable issue of fact and cannot merely deny the summary judgment motion’s allegations but must set forth specific evidence that would be admissible at trial to show that there is a genuine issue for trial. K&I Enterprises, 15 FSM R. at 418; Ueda v. Stephen, 9 FSM R. 195, 197 (Chk. S. Ct. Tr. 1999); see also Helgenberger v. Bank of Hawaii, 19 FSM R. 139, 143 (App. 2013) (non-movant’s burden is to show by competent evidence that there is a triable material issue of fact); Bank of the FSM v. Truk Trading Co., 16 FSM R. 281, 287 (Chk. 2009) (argument alone cannot create a disputed fact that will defeat summary judgment).

When the non-movant has not produced any evidence that would be admissible at trial but has promised that he will produce such evidence later, his mere representation that such evidence exists and will be introduced later at trial does not constitute the production of competent evidence. Dereas v. Eas, 15 FSM R. 135, 140 (Chk. S. Ct. Tr. 2007) (contention that evidence will be introduced and that it will show certain things is hearsay, and hearsay is generally not admissible evidence, and thus cannot be relied upon to create a material issue of fact when opposing a summary judgment motion); Dereas v. Eas, 12 FSM R. at 632 (non-movant cannot rest upon the allegations or mere denials in his pleading, but must respond by affidavits setting forth specific facts showing that there is a genuine issue for trial). Unsupported factual assertions are insufficient to oppose a motion for summary judgment. Dereas, 12 FSM R. at 632.

With these principles in mind, we now turn to the causes of action for which CPUC was denied summary judgment. This is a close case, but we affirm those denials for the reasons that follow.

2. Negligence Cause of Action

CPUC contends that it should have been granted summary judgment on Rain’s negligence claim because it provided competent evidence, its lead network operator’s affidavit, that the cause of the problem was not its fault, thus making out a prima facie that there was no triable issue of fact, and Rain failed to produce any competent evidence to the contrary.

However, our careful reading of that affidavit is not so conclusive. It refers only to the causes of the 2017 backflow(s), not any of the earlier ones, and, while it stated that the May 31, 2017 backflow was caused by a broken check valve, it did not explicitly state that the check valve was not CPUC’s responsibility, although it might (or might not) be read to imply that. The parties dispute which party originally installed the check valve and neither has any direct evidence that the other installed it. Each side argued, based on the check valve’s location, that the other was responsible for it. Thus, viewing the facts and the inferences reasonably drawn therefrom in Rain’s favor, this left open a genuine issue of material fact, and the trial court rightly denied summary judgment on this claim.

3. Trespass Cause of Action

CPUC contends that it should have been granted summary judgment on Rain’s trespass claim because Rain never provided (until trial) proof that he owned Fanipat or any evidence of damages, both of which CPUC considers to be essential elements of a trespass action. In particular, CPUC contends that damages were not shown because Rain failed to produce any evidence that his property had diminished in value.

To prevail in a trespass action, a plaintiff must prove a wrongful interference with his interest in the exclusive possession of the land. Nakamura v. FSM Telecomm. Corp., 17 FSM R. 119, 124 (Chk. 2010). But "any person in the actual and exclusive possession of the property may maintain the [trespass] action . . . ." PROSSER AND KEETON ON THE LAW OF TORTS § 13, at 77 ed. 1984) (footnoootnote omitted); see also In re Parcel No. 046-A-01<6 FSM49, 1on. 1993) (leasehold is a sufficient possessory interest to give a part party stay standingnding to maintain a trespass action). Ownership is not a requirement.

Even though Rain did not produce evidence of his ownership of Fanipat, CPUC did not dispute that Rain was in actual and exclusive possession of Fanipat. Rain therefore had standing to maintain a trespass action for alleged intrusions into his right of possession of Fanipat. Thus, CPUC did not negate this essential element of Rain’s trespass claim even though Rain had not produced any evidence of ownership.

Nor could CPUC have prevailed on Rain’s trespass claim because Rain did not produce any competent evidence of damages. That is because a trespass plaintiff’s failure to proffer any evidence of monetary damages is not fatal to his trespass claim - monetary damages are not an essential element of the trespass tort because, if evidence of actual damages is lacking in a successful trespass action, the trial court will award nominal ($1) damages. Irons v. Corporation of the President of the Church of Latter Day Saints, 22 FSM R. 158, 163 (Chk. 2019); Robert v. Chuuk Public Utility Corp., 22 FSM R. 150, 155 (Chk. 2019); Nakamura v. FSM Telecomm. Corp., 17 FSM R. 41, 50 (Chk. 2010); see also Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 437 (App. 2011).

We do note that if CPUC had known beforehand that Rain was not the sole owner of Fanipat, but just a co-owner, CPUC might have approached its summary judgment motion, or the trial, differently. That is because "[i]n a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties." Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 201, 203 (Chk. 2002). Otherwise, the defendant faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners decide to sue. Id. at 204; see also Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 403, 405 (Chk. 2003). CPUC might have moved to dismiss the trespass claim if Siena O. Rain was not joined as a party-plaintiff.

4. Nuisance Cause of Action

CPUC contends that it should have been granted summary judgment on Rain’s nuisance claim for the same reasons that it should have been granted summary judgment on Rain’s negligence and trespass claims - Rain had produced no competent evidence the CPUC was responsible for the broken check valve and no competent evidence that Fanipat’s value had diminished and or the amount of that diminution.

Since a nuisance cause of action may arise when a defendant has been negligent and that negligence has substantially interfered with the plaintiff’s use and enjoyment of his property, Damarlane v. Damarlane, 19 FSM R. 97, 110 (App. 2013), and since we have just ruled that it was not error to deny summary judgment on Rain’s negligence claim, then it was also not error to deny summary judgment on Rain’s nuisance claims.

Furthermore, even if Rain did not show there was a diminution in Fanipat’s value, it does not mean that CPUC has shown that there were no nuisance damages. Diminution of a property’s value is not the sole measure of nuisance damages and CPUC never addressed or negated those other measures. Special damages may also be awarded for nuisance.

Where the nuisance, or the injury arising from it, is not permanent and has been or can be abated, damages are usually measured differently. The plaintiff usually recovers the depreciation in the rental or use value of his [or her] property during the period in which the nuisance exists, plus any special damages. Rental and use value are not necessarily the same thing, and some courts allow a plaintiff who actually occupies the premises to recover the "use value," or special value to him [or her], but limit the recovery of the owner who does not occupy the premises to the more objective measure of rental value. Discomfort or inconvenience in the use of the property is, of course, relevant to both establish special damage and as evidence bearing on the loss of rental or use value.

DAN B. DOBBS, LAW OF REMEDIES § 5.3, at 333 (1973otnotes omes omitted).^[1] The nuisance in Rain’s case was not permanent and has now been abated. "[T]he land ont may recover special damages in addition to the depreciateciation in market or use value. This commonly includes damages for personal discomfort or illness resulting from the nuisance . .&# ." Id. &#1> § 5.3,34. And "the plaintiffntiff in a nuisance case may recover the reasonable cost of his [or her] own efforts to abate the nuisance or prevent future in" & 5160;5.3, at 335.

5. Negligegligent Ient Infliction of Emotional Distress Cause of Action

CPUC also did not prevail on its summary judgment motion on Rain’s negligent infliction of emotional distress cause of action. We, however, do not have to consider whether CPUC should have been granted summary judgment on this cause of action because Rain did not prevail on this claim at trial.

B. Trial on the Merits

1. Parties’ Positions

CPUC contends that, if it is not granted judgment on its summary judgment motion, then it must be granted a new trial because it was ambushed at trial by Rain producing evidence that CPUC had asked for in discovery but which Rain had not produced, and that this violated its due process rights.

Rain contends that CPUC cannot raise this issue now because it did not object at trial to Rain’s introduction and admission of evidence. Rain contends that the lack of discovery was not raised as an issue in the summary judgment motion. Rain argues that CPUC should have filed a motion to compel Rain to produce the requested discovery and that since it did not, it waived any right to that evidence and cannot now raise the issue that Rain did not provide CPUC with the evidence it requested during discovery. Rain contends that CPUC has waived this issue by not raising it at the trial level.

CPUC acknowledges that it did not raise this issue during trial but counters that we may notice the error under the plain error doctrine.

2. Whether Issue Was Raised

While we realize that the trial court denied Rain’s motion for an enlargement of time to respond to CPUC’s discovery requests (which the trial court probably should not have done), we do not think that that denial relieved Rain of his responsibility to provide those discovery responses to CPUC as soon as he was able to. If he had done so, CPUC may have withdrawn or modified its summary judgment motion; CPUC may have sought to conduct further discovery into Rain’s claimed damages; CPUC may have sought to depose Rain once he was back from Hawaii; and CPUC may have come to trial prepared to counter Rain’s newly produced evidence. CPUC was unable to do any of those things.

We are also not convinced that CPUC waived its right to raise this issue. During the summary judgment motion hearing, Rain’s counsel stated Rain was

prepare[d] to show evidence to show -- to show the damages today at trial. Umm, I do apologize to the court that plaintiff is [sic] been on medical leave in Hawaii at the uh, Kalihali Puama House Center in Hawaii for the last several months. Uhm, and that frankly is the reason that the discovery was not answered properly. I do apologize to the court for that. Plaintiff only just returned last week. I only met with plaintiff uh, I believe it was Wednesday last week. Um, so there - the plaintiff and I myself apologize that the discovery was not timely responded to. Uh, under Rule 37, uh, defendant uh, he could have file[d] a motion to compel uh, to defendant [sic] but, that hasn’t been file[d].

Tr. at 16. While it is true that CPUC could have filed a motion to compel the discovery, it does not seem that, in this case, such a motion would have been productive since the reason no discovery was produced was Rain was in Hawaii. But CPUC did object to proceeding this way. Still during the summary judgment hearing, CPUC’s attorney responded,

[W]e have responded to his discovery already so we have given everything that he asked for so it would be unfair for him to have our evidence and for our site [sic] not to have anything to prove against him. So now he has our evidence. . .&#1Now plaintiff hasn̵’t got anything for discovery. We have asked them for discovery he has not given us anything. Motion for jumery - uh, summary judgment helps to . . . the is.&#1616. . And. And that’s why discovery is one of the steps before going to trial so it helps the parties to narrow the issues and helps this court e same. Hr, we can’t do that because plainplaintiff tiff has not given us anything.

Tr. at 24. Thus, CPUC specifically stated that it would be unfair for Rain to have CPUC’s evidence and for CPUC not to have any of Rain’s evidence. CPUC did object and raise the issue. Thus, its objection to Rain using evidence that CPUC has asked for in discovery but not received was before the trial court during the summary judgment hearing.

While it would have been better if CPUC had renewed that objection at the start of trial just a couple of hours later, we are not sure it was absolutely necessary. The trial court was already aware of the basis of CPUC’s objection. The summary judgment hearing and the trial were run one after the other like it was one proceeding, all blurred together. The trial court ought to have been aware during the summary judgment hearing that Rain had evidence he was supposed to provide to CPUC in response to its discovery requests, but had not, and that Rain intended to introduce that evidence at trial since Rain’s counsel admitted that (and apologized for it). Rain did not even provide that discovery evidence to CPUC before the summary judgment hearing, or after that hearing and before trial. Rain should have.

3. Plain Error

But even if CPUC should have, at trial, repeated its objection to Rain introducing any evidence he was required to provide CPUC during discovery but did not, that does not address the fundamental unfairness of proceeding that way. "When a litigant raises an issue for the first time on appeal, he or she is deemed to have waived the right to challenge the issue unless it involves a plain error that is obvious and substantial and that ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’" Panuelo v. Amayo, 12 FSM R. 365, 372 (App. 2004) (quoting Hartman v. Bank of Guam, 10 FSM R. 89, 95 (App. 2001)). We hold that it was plain error that was obvious and substantial for the trial court to proceed immediately to trial because the trial’s fairness and the integrity was seriously affected by Rain’s failure to disclose his trial evidence. The trial court should have, after the summary judgment hearing if not earlier, ordered Rain to disclose to CPUC the evidence that he said, during the summary judgment hearing, that he intended to use at trial and which CPUC had requested in discovery. (Rain does not dispute that he had such evidence and apologized for not producing it earlier, but the apology is not enough.) CPUC then should have been afforded the time and opportunity to review that evidence and to determine if it needed to conduct further investigation and discovery or how else best to prepare to counter that evidence at trial. And if CPUC did ask to conduct such further discovery, the trial court should have granted it adequate time to do so and continued the trial.

We further hold that Rain’s obligation to provide CPUC with the discovery requested did not end when the discovery deadline passed. To hold otherwise would only encourage future bad behavior by counsel and parties. They would have every incentive to try to withhold evidence from the opposing party that that party had asked for in discovery in the hope they could later slip it in before the court during trial, expecting either that the opposing party would not notice or that the opposing party, faced with the unpalatable choice of asking for a trial continuance and asking to conduct further investigation and discovery to locate counter evidence or going ahead, would opt for the route of least expense and hope that the evidence was not too damaging. That is not a choice parties should be expected to have to make.

C. Sufficiency of Evidence for Trial Court Judgment and for Damage Amount

Since we rule in CPUC’s favor on its second assignment of error, we do not need to analyze the sufficiency of the evidence for a trial court judgment in Rain’s favor or for the damage amount that the trial court awarded Rain. We only note that CPUC thought it suspicious that the judgment amount was exactly the same as the amount that the trial court found that it cost Rain to build his house. We make no comment on that, but do note that Rain submitted curiously round figures as the damages for all the personal property items that he alleged were damaged and that the evidence was sparse to support any particular figure for anything.

D. Comparative Fault

There is one more point we feel warrants discussion - comparative negligence. CPUC pled comparative negligence as one of its defenses. During trial, each side claimed that the other side was the one at fault or the one whose actions or inactions caused the sewage backflow and each side produced evidence to support its position. The trial court considered whether it was more likely that Rain or that CPUC was at fault and caused the backflow problem, and ruled that it was more likely CPUC’s fault than Rain’s fault. But the trial court seems not to have considered whether both may have borne some fault; or that both may have contributed to the problem; or whether it should have made an attempt to apportion the fault between the parties.

Chuuk is a comparative fault or comparative negligence jurisdiction and follows the "pure system" of comparative negligence. Kileto v. Chuuk, 15 FSM R. 16, 18 (Chk. S. Ct. App. 2007) (under the "pure" form of comparative negligence, a defendant is entitled to a proportional reduction in any damage award upon proof that the plaintiff’s negligence was in part the cause of his injuries); Epiti v. Chuuk, 5 FSM R. 162, 167-68 (Chk. S. Ct. Tr. 1991) (defendant is entitled to a proportional reduction in any damage award upon proof that the plaintiff’s negligence was in part the cause of his injuries); see also Nakamura v. FSM Telecomm. Corp., 17 FSM R. 41, 49 (Chk. 2010); Fabian v. Ting Hong Oceanic Enterprises, 8 FSM R. 63, 66 (Chk. 1997) (under the "pure" form of comparative negligence, a plaintiff may still recover for all of the harm attributable to the defendant’s wrongdoing even if plaintiff’s negligence was greater than the defendant’s).

CPUC did plead comparative negligence as an affirmative defense, and the issue of who was at fault was tried. So, if, on remand, the matter goes to trial, the court should consider comparative negligence when weighing the evidence about fault.

V. CONCLUSION

Accordingly, we hereby vacate the trial court judgment and remand the matter for a new trial. Before the trial court holds a new trial, it shall reopen discovery to permit CPUC to make further inquiries into Rain’s evidence.

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^[1] DAN B. DOBBS, LAW OF REMEDIES § 5.3 was later quoted inenti entirety, including its footnotes, in PROSSER AND KEETON ON THE LAW OF TORTS § 89, at 637-40 (5th ed. 1984).