Yang v Sa Yong Hong [1998] GUSC 8; 1998 Guam 09 (2 July 1998)

IN THE SUPREME COURT OF GUAM

DANNY JAE H. YANG, ) Supreme Court Case No. CVA97-035

) Superior Court Case No. CV0855-93

Plaintiff-Appellee, )

)

vs. )

)

EDWARD SA YONG HONG, ) OPINION

)

Defendant-Appellant. )

)

__________________________________________)

Filed: July 2, 1998

Cite as: 1998 Guam 9

Appeal from the Superior Court of Guam
Argued and Submitted on 5 May 1998
Hagåtña, Guam

Appearing for the Plaintiff-Appellee:
Daniel R. Del Priore, Esq.
Suite 507, GCIC Building
414 West Soledad Avenue
Hagåtña, Guam 96910

Appearing for the Defendant-Appellant:
William C. Bischoff, Esq.
134 Chalan Santo Papa, Ste. 202
Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice; JANET HEALY WEEKS, Associate Justice; and JOSE I. LEON GUERRERO, Associate Justice.

WEEKS, J.:

[1] Appellant Edward Sa Yong Hong (Hong) timely appeals the trial court=s factual findings that Hong owed $80,000 in loans plus interest and costs to Appellee Danny Jae H. Yang (Yang). Hong also appeals the order denying his motion for a new trial, based upon newly discovered evidence at trial. This court finds that the trial court was not clearly erroneous in its factual findings in favor of Yang, nor did it abuse its discretion in denying the motion for a new trial. We therefore affirm the decision below.

I.

[2] Plaintiff-Appellee Yang sued Defendant-Appellant Hong over three insufficient funds checks, payable to cash, amounting to $80,000. Yang contends that the checks were written as evidence of loans that his mother had made to Hong. The first check for $30,000 dated 3 January 1992 with the word Aloan@ written on the memo line is not in dispute, admitted by Hong to be evidence of a loan made from Yang, but Hong asserts that $29,000 of the $30,000 loan was paid back. The next two checks dated 13 October 1992, for $30,000 and $20,000 respectively, were disputed by the parties. Yang contends that they were evidence of a loan of $50,000 (combined ) made to Hong; Hong contends that the checks evidence Hong=s guarantee to Yang for Yang=s contributions to a failing Korean money club, and that no loan of $50,000 was made from Yang to Hong. The memo line on both these checks is without notation. At trial, there was evidence of $30,000 of Citibank loan proceeds that were used as part of Yang=s loan money to the Hongs around the time of the first $30,000 loan in January 1992.

[3] A bench trial was held on 24 January 1997, after which time the trial court entered judgment for Plaintiff Yang in the sum of $80,000 for payment on the three (3) dishonored checks, plus pre- and post-judgment interest, and costs of suit. Hong thereafter sought further records concerning the Citibank proceeds claimed to have been used in the loan. The records showed that the Citibank loan proceeds were disbursed to Yang on 15 October 1992 and remained in Yang=s Union Bank account throughout November 1992. They therefore were not used in the loans between Yang and Hong. Hong brought a motion for a new trial based on Yang=s testimony at trial of the Citibank loan proceeds. The motion for a new trial was denied by the trial court on 2 July 1997.

II.

[4] The Supreme Court has jurisdiction over this appeal pursuant to 7 GCA '' 3107(a), 3108(a), 25201 (1994) and 48 U.S.C. ' 1424-3(d) (1984). Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Guam R. Civ. P. 52(a); Coffey v. Govt. of Guam, 1997 Guam 14 & 6. Factual determinations are reviewed for clear error. Guam v. Chargualaf, Crim. No. 88-00068A, 1989 WL 265040, at *2 (D. Guam App. Div. Sept. 26, 1989). Findings of fact made by a judge after a bench trial are subject to the clearly erroneous standard of review. Wilson v. United States, 645 F.2d 728, 730 (9th Cir. 1985); Lei v. Global Eng=g & Maintenance Svc. Corp., Civ. No. CV 96-00007A, 1996 WL 875782, at *4 (D. Guam App. Div. Oct. 4, 1996). A decision on a motion for a new trial is reviewed on appeal for an abuse of discretion by the trial judge. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S.Ct. 2909, 2921 (1989); Phillips v. Ceribo, Civ. No. 83-0053A, 1984 WL 48862, at *1 (D. Guam App. Div. April 1, 1984).

III.

[5] Hong asserts that the trial court abused its discretion in its factual findings in favor of Yang. Hong=s reliance on this standard is somewhat misguided. While it is true that a trial judge=s reliance on clearly erroneous facts amounts to an abuse of discretion, Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir. 1995), the fundamental issue is whether the facts were erroneously determined. Hong bases his position upon the fact that Yang and his father are taxi drivers, and would not have had the money to lend to Hong, as evidenced by copies of previous years= income tax returns . He contends that the trial court=s judgment Atends to defy logic and common sense@, Lampley v. Government of Guam, 882 F.Supp. 957, 959 (D. Guam App. Div. 1995), and amounted to an abuse of discretion. Testimony was elicited at trial concerning a Korean money club, or Agwae tong@, to which Yang had contributed substantial amounts. Mrs. Hong was the organizer of the club. Hong contends that the two checks dated 13 October 1992 in the amounts of $30,000 and $20,000, for a total amount of $50,000, were written by Hong to Yang as a guarantee of Yang=s contribution to the money club rather than as evidence of a loan. Several witnesses presented evidence of the gwae tong and of their contributions into the Korean money club. Witness Yong Hui An stated that she witnessed Mrs. Hong give Mrs. Yang $20,000, allegedly for partial repayment of the first $30,000 loan. This first $30,000 loan is not in dispute by the parties. At trial, Mrs. Hong stated that on another occasion she had written a member of another gwae tong two (2) checks similar to what she had done with the Yangs on 13 October 1992, as a guarantee of their contributions to the money club, and not as personal loans, where she had written AGwae=s guaranteed money@ on the memo line. Hong claims that because the money club was about to fail due to some members not paying their share into the club, the 13 October 1992 checks written to Yang were simply guarantees of Yang=s contribution. This was done only because of the repeated request of Mrs. Yang, and no loan of $50,000 was made from Yang to Hong.

[6] Appellee Yang contends that the trial court=s findings are amply supported by evidence in the record, testimonial and documentary, presented at trial. AIf the [trial] court=s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.@ Service Employees Int=l Union, AFL-CIO, CLC v. Fair Political Practices Comm=n, 955 F.2d 1312, 1317 n.7 (9th Cir. 1992) (citation omitted). Yang points out that the trial court actively participated in the proceedings, asking questions of the witnesses, assessing their demeanor and credibility, as well as questioning both counsel throughout trial. Appellee states that Yang had the financial ability to lend $80,000 to Hong based upon evidence of prior years= savings from Danny Yang and his father, earnings from their taxi driving jobs. Danny Yang stated that he had over $70,000 saved. Mrs. Yang held all the monies from her husband and her son Danny, as it is Korean custom to give all earnings to the mother, who is the custodian of the family income. Yang also had available $30,000 in Citibank loan proceeds left over from a loan to purchase a house. Plaintiff-Appellee maintains that the trial court correctly determined that although it was difficult to believe that the Yangs could have that much money available to them, given that Hong conceded that Yang loaned the first $30,000 to him and that the 3 January 1992 check was evidence of the loan, the credible evidence showed that Yang made a loan to Hong for an additional $50,000, and that there was no sufficient evidence of repayment.

[7] This court is persuaded by the argument of Plaintiff-Appellee Yang. We cannot characterize the trial court=s findings such that it Atends to defy logic and common sense.@ Lampley, 882 F.Supp. at 959. As stated by the court in Chargualaf:

A finding is clearly erroneous when, even though some evidence supports it, the entire record produces the definite and firm conviction that the court below committed a mistake. The appellate court accords particular weight to the trial judge=s assessment of conflicting or ambiguous evidence. The applicable standard of appellate review is narrow; the test is whether the lower court rationally could have found as it did, rather than whether the reviewing court would have ruled differently.