Livaie v Weilbacher [2005] FMKSC 4; 13 FSM Intrm. 206 (Kos. S. Ct. Tr. 2005) (20 April 2005)

KOSRAE STATE COURT TRIAL DIVISION
Cite case as Livaie v Weilbacher, 13 FSM Intrm. 206 (Kos. S. Ct. Tr. 2005)

HAIROM E. LIVAIE,
Plaintiff,

vs.

BAOBAO WEILBACHER and WHITESAND
CONSTRUCTION COMPANY,
Defendants.

__________________________________________

CIVIL ACTION NO. 95-02

MEMORANDUM ON AWARD OF DAMAGES; JUDGMENT

Yosiwo P. George
Chief Justice

Hearing: April 14, 2005
Decided: April 20, 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

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HEADNOTES

Evidence
When the plaintiff tendered receipts for the equipment rental, but the receipts were not original documents, nor copies of the originals: the receipts had been reconstructed recently for the purpose of the hearing, the receipts were not accepted into evidence. Livaie v. Weilbacher, 13 FSM Intrm. 206, 208 (Kos. S. Ct. Tr. 2005).

Evidence
When at trial of the matter, the defendant had argued that only 25% of the excavated fill materials had met specifications and had actually been hauled to the road project site, but, at the hearing held on April 14, 2005, did not present any evidence in support of this argument, the plaintiff is entitled to restitution for the market value of all the materials excavated from the quarry. Livaie v. Weilbacher, 13 FSM Intrm. 206, 208 (Kos. S. Ct. Tr. 2005).

Evidence; Remedies - Restitution
When the Plaintiff seeks as a component of restitution, ground rent for his quarry and argues that ground rent is "normally compensated in similar contracts," but did not present any evidence during the June 2003 trial nor at the April 14, 2005 hearing in support of his claim for ground rent and did not offer any "similar contracts" to establish that ground rent is "normally compensated" for the use of land for a quarry, the plaintiff’s request for restitution for ground rent must be denied. Livaie v. Weilbacher, 13 FSM Intrm. 206, 208 (Kos. S. Ct. Tr. 2005).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

On February 3, 2005, the Appellate Division of the FSM Supreme Court entered its Opinion and Judgment, remanding this matter for a new determination of damages. [Livaie v. Weilbacher, 13 FSM Intrm. 139, 143-44 (App. 2005).] Pursuant to the remand order, a further evidentiary hearing on the amount of restitution was held on April 14, 2005. Canney L. Palsis, MLSC, represented the Plaintiff. Defendants were represented by Chang William. Both parties stipulated to the evidence on damages which was submitted to the Court at trial. Vanston Wakuk and Sepe Anderson testified for the Plaintiff.

Pursuant to the remand instructions, this Court shall determine the amount of restitution due to the Plaintiff, based upon the evidence properly before it. In this determination, this Court shall consider the evidence on damages presented at the trial held in June 2003 and the evidence presented at the April 14, 2005 hearing.

[13 FSM Intrm. 209]

Determination of Amount of Restitution.

Plaintiff presented three components in support of his claim for restitution: landfill costs for his land at Palusrik, fill materials that had been removed from Saolung quarry, and ground rent for use of Saolung as a quarry.

Plaintiff claims restitution for the cost of landfilling his land at Palusrik, based upon the Defendant’s failure to provide the landfill as agreed. Plaintiff made arrangements with the State Department of Public Works and with Utwe Municipal Government. Plaintiff purchased landfill materials from Vanston Wakuk and rented equipment from Utwe Municipal Government. Ms. Sepe Anderson, Secretary for Utwe Municipal Government, provided the logbook which showed the equipment rental by the Plaintiff. The Plaintiff also tendered receipts for the equipment rental. However, the receipts were not accepted into evidence as the receipts were not original documents, nor copies of the originals: the receipts had been reconstructed recently for the purpose of this hearing. Based upon the evidence presented, I find that the total cost of landfill material and equipment rental, for landfilling Plaintiff’s land at Palusrik, was $800. Plaintiff is entitled to restitution in the amount of $800 for costs of landfilling his land at Palusrik.

Plaintiff claims restitution for the fill materials that had been removed from Saolung quarry. Based upon the expert testimony presented at trial of this matter, approximately 3040 cubic yards of common fill had been excavated from Saolung quarry. The market price for common fill on Kosrae during the relevant time period was establishes at $2.00 per cubic yard. Therefore, the market value of the fill excavated by the Defendant from Plaintiff’s quarry was $6,080.

At trial of the matter, the Defendant had argued that only 25% of the excavated fill materials had met specifications and had actually been hauled to the road project site. However, at the hearing held on April 14, 2005, the Defendant did not present any evidence in support of this argument. Accordingly, the Plaintiff entitled to restitution for the market value of the materials excavated from the Saolung quarry, in the amount of $6,080.

Plaintiff seeks as a third component of restitution, ground rent for the Saolung quarry. Plaintiff relies upon the evidence presented at trial of this matter, which proved Defendant’s use of Plaintiff’s land for a quarry from August 2001 through approximately May 2002. It is undisputed that the Defendant did not pay any ground rent to Plaintiff for the use of Saolung as a quarry during that time period. Plaintiff argues that ground rent is "normally compensated in similar contracts." Plaintiff seeks damages in the amount of $100 per month for ground rent. Plaintiff did not present any evidence during the June 2003 trial nor at the April 14, 2005 hearing in support of his claim for ground rent. Plaintiff did not offer any "similar contracts" to establish that ground rent is "normally compensated" for the use of land for a quarry. Plaintiff did not offer any evidence to support his claim for ground rent in the specific amount of $100 per month.

[13 FSM Intrm. 210]]

This Court has carefully reviewed the record in this matter and finds no evidence in support of Plaintiff’s damage claim for ground rent presented at the trial or at the evidentiary hearing. Plaintiff’s argument alone is inadequate to support an award for ground rent as a component of restitution damages. Plaintiff’s request for restitution for ground rent must be denied.

Based upon the evidence presented at trial of this matter in June 2003 and at the hearing on April 14, 2005, I conclude 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 excavated materials, for a total damage award of $6,880. Judgment will be entered accordingly.

[13 FSM Intrm. 211]

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