IN THE
CHUUK STATE SUPREME COURT
APPELLATE DIVISION - WENO
Federated States of Micronesia
Cite as Apweteko v. Paneria, 1 CSR 30 (1994)

[1 CSR 30]
APWETEKO et al,
Appellant,

vs

PANERIA et al,
Appellee.

CA APP NO 48

OPINION

Argued    September 8, 1994
Decided    October 21, 1994

Before:
     Hon. Keske Marar, Associate Justice Chuuk State Supreme Court,
          Presiding
     Hon. Yoster Carl, Temporary Justice (Associate Justice, Pohnpei State
          Court)
     Hon. Ready Johnny, Temporary Justice (FSM Public Defender, Chuuk State)

Appearances:
                            For Appellant                                   For Appellee
                            Midasy Aisek                                   Manny Otoko
                            Weno, Chuuk, FM                           Weno, Chuuk, FM

[1 CSR 31]
Headnotes
(Not included in original written decision)
A trial courts judgment on the contents of the pleadings under Chk. R. Civ. P., Rule 8 is a legal issue and is reviewed de novo  by the appellate court.  Apweteko v Paneria, p 32

A trial court's has discretion to allow an amendment of the pleadings pursuant  to Chk. R. Civ. P., Rule 15 and reviewed under the abuse of discretion standard.  Apweteko v Paneria, p 32

The rules of civil procedure allow for notice pleading and require "a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief to which he deems himself entitled.." Chk. R. Civ. P., Rule 8(a).  Apweteko v Paneria, p 32

The pleadings must give the opposing party fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.  Chk. R. Civ. P., Rule 8(a). Apweteko v Paneria, p 32

A pleading may be amended once as a matter of course at any time before a responsive pleading is served.  If the pleading to be amended is one to which no responsive pleading is permitted and the matter has not been set for trial, it may be amended within 20 days after service.  Any other amendment to a pleading must be by order of the court or by written consent of the adverse party. Ckh.R.Civ.P., Rule 15(a).  Apweteko v Paneria, p 32

The trial court has discretion to allow amendments and it should grant them liberally.  Apweteko v Paneria, p 32

Once the pleading is complete and all amendments have been filed the matters raised by the pleadings normally form the issues to be determined at trial.  Apweteko v Paneria, p 32

Issues not raised by the pleading but have been tried by express or implied consent of the parties , shall be treated in all respects as if they had been raised in the pleadings.  Any party may make a motion to amended the pleadings to conform to the evidence and issues tried by such consent.  Chk.R.Civ.P., Rule 15(b).  Apweteko v Paneria, p 32

If an unplead theory of recovery is fully tried by consent of the parties, the trial court may base its decision on that theory and may deem the pleadings amended accordingly.  Apweteko v Paneria, p 32

For the trial court to allow recovery on an unplead theory it must appear on the record that the parties understood evidence presented was aimed at the unplead issue.  Apweteko v Paneria, p 32

In the absence of an on the record understanding by the parties that evidence presented on an unplead issues is aimed at recovery on that issue, it is reversible error for the court to base its decision to allow recovery on issues not plead.  Apweteko v Paneria, p 32

KESKE MARAR, Associate Justice
     This is an appeal from a quiet title and trespass action concerning the eastern third of a taro patch located on the island of Polle.  The trial court awarded title to the property in question to the Appellant and found that the Appellee owned the western third of the same taro patch.  The court below also awarded Appellees $37,920.00 in damages based on unjust enrichment, a claim not found in the original complaint nor in issue at trial.  We affirm the trial courts judgment on the ownership of the property and vacate the damages awarded.

I
FACTS
     The Appellees (herein Paneria) filed their complaint for quiet title seeking to be declared the owners of the eastern third of a taro patch located on the island of Polle and seeking damages for trespass against the Appellants (herein Apweteko) for taking taros in the amount of $25,000.00.  The trial was combined with the hearing on Paneria's motion for a preliminary injunction.  The only issue and evidence presented at the trial on the merits concerned who owned which portion of the taro patch.  The trial court found that the taro patch was divided into three parts.  The court also found that Paneria had purchased one third of the taro patch from the owner Fisenta.  The trial judge determined that Fisenta owned and sold the western third of the taro patch to Paneria.  The court below ruled that Apweteko owned the eastern third of the taro patch.  Evidence was introduced that Paneria and family had mistakenly farmed the eastern third of the taro patch for some five (5) years.  The lower court found that Paneria and family were not at fault for farming the wrong portion of the taro patch.  The court held it was Fisenta's fault since she did not make it clear to Paneria what portion of the taro patch had been purchased.  Fisenta was not a party to this action.  No where at the trial did any of the parties raise the issue or present any evidence concerning a claim of unjust enrichment.  The testimony that Paneria and family had worked the land for some years was introduced to show ownership.   Paneria did not move the trial court to amend the complaint at any time before or after the judgment. Neither was the complaint formally amended.  The trial court sua sponte added the issue of unjust enrichment in its opinion and entered judgment against Apweteko in an amount to be determined by mutual agreement of the parties, if possible.  The parties were not able to agree.  Paneria filed a motion in Aid of Judgment and the trial court awarded damages to Paneria in the amount of $37,920.00 for unjust enrichment.

     Apweteko appealed the lower court's award of damages on the unplead theory of unjust enrichment.  1

[1 CSR 32]
II.
ISSUE
     The issue before the Court is: May a trial court base its decision and judgment on a theory of liability that was not in the pleadings nor in issue at trial?   This question concerns the application of Rules 8 and 15 of our rules of civil procedure.  The Rule 8 issue is reviewed de novo and the Rule 15 issue is reviewed under an abuse of discretion standard.

III.
RULES OF PLEADING AND PRACTICE
     This Court has adopted rules of civil procedure that are based on the Federal Rules of Civil Procedure which are used by the trial courts of the United States federal court system.  These rules allow for notice pleading and require "a short and plain statement of the claim showing that the pleader is entitled to relief and ... a demand for judgment for the relief to which he deems himself entitled.." Chk.R.Civ.P., Rule 8(a).  The pleadings must "give the opposing party fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved."  Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979).

     Once the complaint or other pleading is filed it may be amended.  A pleading may be amended "once as a matter of course at any time before a responsive pleading is served..." Ckh.R.Civ.P., Rule 15(a).  If the pleading to be amended is one to which no responsive pleading is permitted and the matter has not been set for trial, it may be amended within 20 days after service. Id.  Any other amendment to a pleading must be by order of the court or by written consent of the adverse party. Id.  The trial court has discretion to allow amendments and it should grant them liberally.  Id.  Once the pleading is complete and all amendments have been filed the matters raised by the pleadings normally form the issues to be determined at trial.

     At the trial, "[w]hen issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Chk.R.Civ.P., Rule 15(b)[emphasis added].  Any party may make a motion to amended the pleadings to conform to the evidence and issues tried by such consent. Id.  

     If an unplead theory of recovery is fully tried by consent of the parties, the trial court "may base its decision on that theory and may deem the pleadings amended accordingly, even though the theory was not set forth in the pleading or the pretrial order." MBI Motor Co., Inc. v. Lotus/East, Inc., 506 F,2d 709, 710-711 (6th Cir. 1974). If evidence was introduced at trial, without objection, that might be relevant to an unplead theory it must at least appear in the record "that the parties understood the evidence to be aimed at the unpleaded issue." Id.   In the absence of such an understanding, it is reversible error for the court to base its decision on issues not plead. Id ;  See also ,Aiken County v. BSP Div. of Envirotech Corp., 866 F.2d 661, 668 (4th Cir. 1989)[It is an abuse of discretion for a trial court to sua sponte amend a complaint to add an issue not plead or tried].

[1 CSR 33]

     The central reason for these rules is to give the adverse party sufficient notice to enable them to be properly prepared to oppose the claim.  Otherwise, the adverse party is denied the opportunity to adequately litigate the issue.

     We now must analyze the pleadings and evidence presented at trial in light of the foregoing principles.

IV.
ANALYSIS
     It is clear that the theory of unjust enrichment was never plead by Paneria.  The only theory in the complaint was that Paneria was the rightful owner of the land and that Apweteko had trespassed.   Paneria did not move to amend the pleadings before, during or after trial.   The only evidence introduced at trial that might have been relevant to this unplead theory was the testimony that Paneria and family had worked the land for some years.  This evidence was introduced and aimed at the issue of ownership not the recovery of unjust enrichment.  There is nothing in the record to indicate any party understood that the unplead theory of unjust enrichment was an issue before the trial court.

     This situation illustrates the reason for the rule.  The trial court found that Paneria and family were farming land that did not belong to them.  But the court also found that Paneria was not at fault since Fisenta had not clearly indicated the location of the property she sold.  Nor was Apweteko at fault as Paneria was in effect a trespasser although under a mistaken assumption of ownership.  

     Had the issue of unjust enrichment been properly plead or had the parties understood that issue was being tried perhaps Fisenta would have been made a party to the action.  Additionally, if proper notice had been given, Apweteko may have been able show an off-set to Paneria's claim.  Apweteko may have been able to present evidence of the value of the benefit Paneria gained from the taros taken during the five years of farming.  Apweteko may also have been prepared to prove the fair rental value Paneria should have had to pay to farm someone else's land.  But since no one was on notice or understood these questions were in issue, none of these facts were presented.

     As a result,  we must hold that the court below committed reversible error by basing its decision on a theory of recovery that was not raised by the pleadings nor tried by consent or understanding of the parties.  

[1 CSR 34]
V.
CONCLUSION
     The trial court determined that Apweteko was the owner of the eastern third of the taro patch in question and that Paneria owned the western third of the taro patch.  This was the issue before the court and that part of the judgment is affirmed.  But the trial court based the part of its decision awarding Paneria $37,920.00 for damages on a theory of liability that was not contained in the pleadings and was not presented at trial with the consent or understanding of the parties.  Thus, the trial court abused its discretion and committed reversible error.  

     Therefore we affirm the judgment as to the determination of ownership and vacate the award of $37,920.00 damages for unjust enrichment.


Footnote:
 
 1.  Counsel for the Appellees' failed to file an answering brief on behalf of his clients and the Court ordered that the Appellee's be prohibited from arguing.  Even though the appellees' counsel failed to present any brief and was precluded from arguing the appellant still must convince this Court that error was committed.  (Back to opinion)
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