KOSRAE STATE COURT TRIAL DIVISION
Cite as Talley v. Lelu Town Council
10 FSM Intrm. 226 (Kos. S. Ct. Tr. 2001)
 
[10 FSM Intrm. 226]
 
TAYLOR TALLEY
Plaintiff,
 
vs.
 
LELU TOWN COUNCIL, and the LELU MUNICIPAL
GOVERNMENT,
Defendants.
 
CIVIL ACTION NO. 100-00
 
MEMORANDUM OF DECISION
 
Yosiwo P. George
Chief Justice
 
Trial: April 3, 5, 12, 2001
 
Decided: June 11, 2001
 
APPEARANCES:
 
For the Plaintiff:                   Sasaki L. George, Esq.
                                              Micronesian Legal Services Corporation
                                              P.O. Box 38
                                              Lelu, Kosrae FM 96944
 
For the Defendant:             Albert Welly, trial counselor
                                             (Lelu Town Council) j Kosrae State Legislature
                                             P.O. Box 187
                                             Lelu, Kosrae FM 96944
 
For the Defendant:             Chang B. William, trial counselor
                                             (Lelu Municipal Gov't)j Kosrae State Legislature
                                             P.O. Box 187
                                             Lelu, Kosrae FM 96944
 
[10 FSM Intrm. 227]
 
* * * *
 
HEADNOTES
Contracts ) Illegality
     A contract entered into by government officials on behalf of the government, but in violation of applicable law, is illegal. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 233 (Kos. S. Ct. Tr. 2001).
 
Contracts ) Illegality
     A contract which is illegal when it is made is not enforceable because there is no obligation that arises from the illegal contract. There is thus no obligation that has been impaired. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 233 (Kos. S. Ct. Tr. 2001).
 
Contracts ) Illegality
     As a general rule, an illegal contract is unenforceable. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 233 (Kos. S. Ct. Tr. 2001).
 
Contracts ) Illegality
     When there was no promise or expectation of the plaintiff's continued employment by the municipal government after the contract's expiration; when the plaintiff makes no salary claim for unpaid work because, despite the fact that the second contract failed to receive the town council's support as required by the municipal charter and was therefore illegal, the plaintiff was paid for all work performed under the second written contract; public policy weighs in favor of enforcing the provisions of the municipal charter and weighs against enforcement of a contract made in violation of those charter provisions. Plaintiff's breach of contract claim thus fails. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 234 (Kos. S. Ct. Tr. 2001).
 
Common Law; Torts
     United States common law decisions are an appropriate source of guidance for the Kosrae State Court for tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the Federated States of Micronesia. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 234, 236 (Kos. S. Ct. Tr. 2001).
 
Torts ) Trespass to Chattels
     The tort of trespass to chattels, or personal property, is the intentional use of or interference with a chattel which is in the possession of another without justification. Trespass includes the unlawful taking away of personal property of another. Whoever commits or causes another to commit an act of trespass is liable for the trespass and its damages. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 234 (Kos. S. Ct. Tr. 2001).
 
Torts) Trespass to Chattels
     When, although there was substantial evidence to support finding that the plaintiff's personal property had been interfered with or taken away by another person, the plaintiff did not carry his burden of proof to show that either defendant did or caused another person to interfere with or take or move his property away from its designated location, the plaintiff cannot recover on his claim for trespass to chattels. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 235 (Kos. S. Ct. Tr. 2001).
 
Torts) Conversion
     An action for conversion requires proof of the following elements: 1) plaintiff's ownership and right to possession of the property, 2) defendant's wrongful or unauthorized action of dominion over the plaintiff's property inconsistent with or hostile to the owner's right, and 3) damages. Talley v. Lelu
 
[10 FSM Intrm. 228]
 
Town Council, 10 FSM Intrm. 226, 235 (Kos. S. Ct. Tr. 2001).
 
Torts ) Conversion
     When, although there is no dispute that the plaintiff's property was removed from its designated location without his consent and has not been recovered to date, the plaintiff did not prove by a preponderance of the evidence that either defendant converted the property by a wrongful act, the plaintiff cannot recover on his conversion claim. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Torts) Negligence
     Only when there is a duty of care, breach of this duty, damage caused by the breach, and determination of the value of the damage can there be a liability for negligence. A plaintiff must show that the defendants owed the plaintiff a duty of care, and that the defendants breached this duty. The plaintiff must also show that his injuries were caused by the breach and that a value can be assigned to his injuries. The common law definition of negligence includes the failure to use such care as a reasonably prudent person would use in a similar situation. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Torts) Negligence
     Negligence may include a condition created by the negligent conduct of a government entity, or its employees, a condition which created a reasonably foreseeable risk of the kind of injury which afflicted the plaintiff, and that the injury proximately caused by the condition. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Torts ) Duty of Care
     In order to be liable for a breach of duty of care, the breach must cause damage. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Torts ) Negligence
      When the act of losing the key, or providing the key to allow one or more unauthorized persons access to the municipal building and the office area breached the duty of care to protect the plaintiff's property and created a reasonably foreseeable risk that the property in the building would be moved, damaged or removed from the premises, and when the plaintiff's property was removed from its designated location, the loss of the key, or the providing it to unauthorized persons proximately caused the plaintiff's loss of his personal property, and the defendants are liable for tort of negligence. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Civil Rights
     Persons liable for civil rights violations include government entities. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 236 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Kosrae ) Due Process
     A person may not be deprived of property without due process of law. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 237 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law) Due Process; Constitutional Law ) Kosrae ) Due Process
     To be property protected under the FSM and Kosrae Constitutions, the employment right must be based on governmental assurance of continual employment or dismissal for only specified reasons. A person who has been hired under an employment contract, for a specific length of time, with no provisions for renewal of the contract and no entitlement for renewal of the contract, does not have a property interest in his continued employment and is not entitled to a hearing before termination.
 
[10 FSM Intrm. 229]
 
Talley v. Lelu Town Council, 10 FSM Intrm. 226, 237 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law) Due Process
     A person who has been employed for twelve years under a series of one year contracts could prove that by that length of employment, there was unwritten claim to continued employment under tenure. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 237 (Kos. S. Ct. Tr. 2001).
 
Constitutional Law ) Due Process; Contracts
     As a general proposition, a governmental entity's breach of a contract, without more, does not constitute a due process violation. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 237 (Kos. S. Ct. Tr. 2001).
 
Civil Rights
      A civil rights claim against a municipal government will be dismissed when it fails to allege that the officials were acting pursuant to governmental policy or custom when the allegedly unconstitutional actions occurred or when it fails to allege that the violations were caused by the officials who were responsible for final policy making, and when those officials made a deliberate choice to follow a course of action chosen from various alternatives. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 238 (Kos. S. Ct. Tr. 2001).
 
Torts) Damages
     A person injured through the negligence of another is entitled to an award of damages for pain and suffering. Awarding damages for pain and suffering is one of a court's most difficult tasks because the determination lies solely in the discretion of the trier of fact and no fixed rules exist to aid in the determination. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 238 (Kos. S. Ct. Tr. 2001).
 
Torts) Damages
     When there is no direct evidence of the amount of damages sustained, nor the amount of money that can compensate for an injury, the court, as trier of fact, must assess the proper level of compensatory damages for that injury. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 238 (Kos. S. Ct. Tr. 2001).
 
Torts ) Damages
     A person who is injured through the negligence of another is entitled to an award of damages for pain and suffering. To recover for pain and suffering a plaintiff need only show "suffering," not both "pain" and "suffering" as the term includes not only the physical pain but also fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 238 (Kos. S. Ct. Tr. 2001).
 
Torts) Damages
     Damages for harm to personal property is the difference between the value of the property before the tort and its value afterwards. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 238 (Kos. S. Ct. Tr. 2001).
 
Evidence) Judicial Notice; Torts ) Damages
     In determining damages, the court may take judicial notice regarding the replacement costs for college transcripts and a college diploma, when they are easily ascertainable and available on the University of Guam Internet site and from the University of Guam Office of Admissions and Records. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 239 (Kos. S. Ct. Tr. 2001).
 
[10 FSM Intrm. 230]
 
Torts ) Damages
      No additional damages will be awarded for the "sentimental value" of the lost items when the plaintiff's pain and suffering has already been compensated, because these damages already encompass the "sentimental value" of the lost items. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 239 (Kos. S. Ct. Tr. 2001).
 
Torts) Damages ) Punitive
     Punitive damages may be awarded when a tort was committed with actual malice, or deliberate violence, or the acts complained of were wanton, reckless, malicious and oppressive and are given to enhance compensatory damages. Punitive damages depend on the existence of compensatory damages and cannot be awarded in the absence of compensatory damages. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 239 (Kos. S. Ct. Tr. 2001).
 
Torts) Damages ) Punitive; Torts ) Negligence
      Punitive damages are not recoverable for ordinary negligence. Talley v. Lelu Town Council, 10 FSM Intrm. 226, 239 (Kos. S. Ct. Tr. 2001).
 
* * * *
 
COURT'S OPINION
 
YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on April 3, 2001. Plaintiff was represented by Sasaki L. George, MLSC, Kosrae. Albert Welly represented Defendant Lelu Town Council. Chang B. William represented Defendant Lelu Municipal Government. Trial was continued on April 5, 2001. Closing arguments were heard on April 12, 2001. Plaintiff's claims made against the Defendants were: breach of contract, trespass to chattel, conversion, negligence and civil rights violation. The following persons testified at trial: Plaintiff Taylor Talley, former Mayor Joab P. Sigrah, Councilman Clanry Likiaksa, Peter R. Sigrah, Henrietha R. Albert, and Palikkun E. Sigrah. Following trial of this matter, I took the case under advisement. This Memorandum of Decision sets forth the Court's decision and its reasoning.

I. Findings of Fact.

     On March 25, 1997, Plaintiff and Defendant Lelu Municipal Government ("LMG") executed a written contract for contractual services. Plaintiff, who has obtained a degree in civil engineering from the University of Guam, signed the contract on his own behalf. Defendant LMG was represented through the elected Lelu Town Mayor at that time, Joab P. Sigrah, who signed the contract on behalf of LMG. The written contract provided that the Plaintiff, as a Contractor, would provide services "to follow-up all paper works for the remaining municipal projects and to supervise the remaining projects during construction until the completion of these projects." The written contract further provided that the Plaintiff would be paid the amount of $32.00 per day from project funds, and that the contract would terminate on December 31, 1997. The written contract did not specify how many hours per day, how many days per week, or on which days the Plaintiff was expected to perform services under the written contract.

     The hiring of the Plaintiff by former Mayor Sigrah in March 1997 was authorized by Resolution C.R. No. 2-16, which was adopted by the Lelu Town Council in December 1996. Resolution C.R. No. 2-16 authorized former Mayor Sigrah to hire a person on a short or long term contract, to assist with documentation and supervision of ongoing construction projects. Former Mayor Sigrah hired the Plaintiff and executed a written contract with the Plaintiff as authorized by Resolution C.R. No. 2-16.

[10 FSM Intrm. 231]

     After Plaintiff was hired, he was assigned a desk and workspace in the upstairs office of the Lelu Municipal Building by former Mayor Joab P. Sigrah. Plaintiff performed most of his work at that location. Plaintiff also testified that he stored various materials in and around his desk in the Lelu Municipal Building, including the following: college diploma, college transcripts, reference letters, construction designs, blueprints, textbooks, various drawing and measuring tools. Plaintiff testified that he stored these items in and around his desk and work area from March 1997 through approximately March 1998.

      From March 25, 1997 through the end of 1997, Plaintiff performed services in accordance with the written contract. Plaintiff worked different hours each week, depending on the need for his services. Plaintiff submitted timesheets to LMG on a regular basis to document the hours he worked. Plaintiff was paid bi-weekly by LMG, based upon the hours that he worked, as submitted in his timesheets. Plaintiff was paid by checks drawn on the LMG treasury account.

     Before January 1998, the Plaintiff and former Mayor Sigrah met to discuss an extension to the Plaintiff's contract. The parties agreed to execute another contract, which would be effective from January 1, 1998 until the end of 1998, under the same terms and conditions as the previous written contract, except that the daily rate of compensation was set at $20.00 per day. Plaintiff and former Mayor Joab P. Sigrah executed a second written contract. The original and duplicates of the second written contract were lost or destroyed, and therefore were not introduced into evidence at the trial, but both Plaintiff and Defendant LMG testified in support of the execution of the second contract. The testimony of the Plaintiff and former Mayor Sigrah stated that the terms of the second written contract were substantially the same as the first written contract, except that the daily rate of compensation was reduced to $20.00 per day.

     The Lelu Town Council did not approve the second written contract between the Plaintiff and former Mayor Sigrah by ordinance or by resolution. Plaintiff continued to provide his services to LMG from January 1998 through March 1998. During that time period, Plaintiff continued to use the desk and work space assigned to him in the upstairs office of the Lelu Municipal Building.

     During the time period that Plaintiff performed services for LMG, from March 1997 to March 1998, the Lelu Municipal Building was locked after working hours and when the building was not in use. The former Mayor Sigrah, several members of the Lelu Town Council and several staff persons of the Lelu Municipal Government possessed keys to the doors of the Lelu Municipal Building. A woman who performed cleaning and janitorial services also had keys to the Municipal Building doors. The Mayor and Council Chairman are responsible for the distribution of keys and providing access to the Lelu Municipal Building. Plaintiff was never given any keys to the Lelu Municipal Building.

     On March 17, 1998, the Lelu Town Council adopted Resolution C.R. No. 04-002, which referenced the Lelu Town Municipal Charter provision which required the Council's approval for the appointment of personnel performing work for LMG. Resolution C.R. No. 04-002 reminded former Mayor Sigrah of the Lelu Town Charter requirement of the Council's approval for Plaintiff's second contract. The Resolution requested the Mayor to terminate the contract with the Plaintiff. During March 1998, Plaintiff and former Mayor Sigrah had a meeting together to discuss inquiries and actions taken by the Lelu Town Council. At that meeting, former Mayor Sigrah asked the Plaintiff to stop coming to work because of inquiries made by members of Lelu Town Council. Former Mayor Sigrah told the Plaintiff that he would contact him when his services were again needed. Plaintiff was never contacted by former Mayor Sigrah to request Plaintiff to work again for the LMG.

     Also in March 1998, Plaintiff's desk was moved from its designated location in the upstairs office of the Lelu Municipal Building to another room in the same building. At that same time, Plaintiff's

[10 FSM Intrm. 232]

personal possessions which were claimed stored at his desk and work area disappeared. The following personal possessions were removed from Plaintiff's desk and work area: college diploma, college transcripts, reference letters, construction designs, blueprints, textbooks, various drawing and measuring tools. These items were never recovered by the Plaintiff. There was no evidence of a forced entry into the Lelu Municipal Building, or into the office where Plaintiff's desk and personal property were stored. Keys were utilized to open the doors of the Lelu Municipal Building to allow access to Plaintiff's desk and property. There was no evidence presented regarding the identity of the person or persons involved in movement of the Plaintiff's desk or the removal of Plaintiff's personal property.

     Plaintiff testified that he suffered embarrassment, loss of dignity and ridicule from the termination of his employment contract and the loss of his personal property. Plaintiff also testified that he attached sentimental value to some of the personal property that was removed.

II. Issues Presented at Trial.

1. Whether the Defendants are liable for breach of contract for termination of the Plaintiff's agreement in March 1998?

2. Whether the Defendants are liable for trespass to chattel, namely the movement of Plaintiff's desk?

3. Whether the Defendants are liable for conversion, namely the removal of Plaintiff's personal property from and around his desk?

4. Whether the Defendants are liable for negligence for creating a condition which resulted in the movement of Plaintiff's desk and removal of his personal property from his desk and workspace?

5. Whether the Defendants are liable for violation of the Plaintiff's civil rights by failing to provide a hearing and opportunity to be heard, prior to termination of Plaintiff's contract?

III. Legal Analysis

1. Breach of Contract

     Plaintiff argues that the second written contract he executed with former Mayor Joab P. Sigrah was breached. The terms of the second written contract between the Mayor and the Defendant effective in January 1998 were similar to the terms of the first written contract, except that the daily rate of compensation was set at $20.00 per day. Plaintiff argues that the second written contract provided an opportunity for employment, on a full time basis, through the end of 1998.

     Defendant Lelu Town Council claimed that the second written contract entered into between former Mayor Sigrah and the Plaintiff for the period beginning in January 1998 was illegal because it violated the Lelu Town Municipal Charter. The Charter, Article II, Sections 9 and 10, govern the employment of staff by the Lelu Municipal Government. Article II, Sections 9 and 10, provide that:

The duties and responsibilities of the employees of the Office of the Mayor shall be accomplished by ordinance.

The appointment of personnel to enforce the Charter and the ordinances of the Lelu Town Government shall be made by the Mayor with the approval of two-thirds of the members

[10 FSM Intrm. 233]

                    of the Sroasr Masap.

Id. (As translated from Kosraean language version. The Kosraean language version prevails, pursuant to the Lelu Town Municipal Charter, Article X, Section 1.)

     These Charter provisions require that the hiring or appointment of all personnel who enforce the Charter and ordinances of Lelu Municipal Government must be approved by two-thirds of the members of the Lelu Town Council.

     The terms of the second written contract executed by Plaintiff and former Mayor Sigrah were substantially similar to that of the first contract, except for the daily rate of compensation, which was set at $20.00 per day. Accordingly, the purpose of the second written contract was also to document and supervise ongoing construction projects being performed by Lelu Municipal Government. These projects were funded through appropriations made by Congress of the Federated States of Micronesia and reappropriated through Lelu Town Municipal ordinances. Plaintiff was paid by checks drawn on the Lelu Municipal Government treasury account. The Plaintiff was appointed to enforce the Charter and appropriation ordinances of Lelu Municipal Government as they involved ongoing municipal construction projects. Plaintiff's duties were to supervise the construction, and to followup and complete the related documentation for the construction projects.

     The second written contract was never approved by the Lelu Town Council. No ordinance or resolution was ever passed by the Lelu Town Council which authorized, ratified or approved the second written contract between Plaintiff and former Mayor Sigrah, or the re-appointment of the Plaintiff to work on municipal construction projects. The second appointment of the Plaintiff to work in the Office of the Mayor and enforce the Charter and the ordinances of the Lelu Municipal Government beginning January 1998 was not approved by two-thirds of the members of the Lelu Town Council. Therefore, the second written contract executed by the Plaintiff and the former Mayor Sigrah violated the Lelu Town Municipal Charter, Article II, Sections 9 and 10.

     This Court may determine whether the violation of Lelu Town Municipal Charter is grave enough to warrant unenforceability of the contract. A contract entered into by government officials on behalf of the government, but in violation of applicable law is illegal. Ponape Transfer & Storage v. Federated Shipping Co., 3 FSM Intrm. 174 (Pon. 1987). Here, the second contract was entered into by Plaintiff and former Mayor Sigrah in violation of the Lelu Town Municipal Charter. Neither the re-hiring of the Plaintiff nor the second written contract had approval by b members of the Lelu Town Council. A contract which is illegal when it is made is not enforceable because there is no obligation that arises from the illegal contract. Therefore, there is no obligation that has been impaired. Truk Shipping Co. v. Chuuk, 7 FSM Intrm. 337 (Chk. S. Ct. Tr. 1995).

     As a general rule, an illegal contract is unenforceable. Ponape Transfer & Storage v. Federated Shipping Co., 3 FSM Intrm. 174 (Pon. 1987). However, the FSM Supreme Court has held that there are some exceptions to the general rule that illegal agreement are void. In the case of FSM v. Falcam, 9 FSM Intrm. 1 (App. 1999), the Appellate Division addressed the issue of whether to allow enforcement of an illegal employment contract. In the Falcam case, the Appellee had been hired by his uncle into the Pohnpei Postmaster position. The hiring of the Appellee was made in violation of FSM law which made it a criminal offense for a public official to participate personally and substantially in any matter to which his close relative has financial interest. The Secretary of Finance refused to issue salary checks to the Appellee, who worked from September 1986 to June 1987 without pay. The Appellate Court found that public policy weighed in favor of denying enforcement of the employment contract. The Appellee's employment contract, held to be illegal and unenforceable by the trial court, was affirmed by the Appellate Division. On the issue of the Appellee's right to payment of salary for

[10 FSM Intrm. 234]

the time he did work, the trial court determined that public policy favored the Appellee and ordered payment of his salary for the time period that he did work. The Appellate Division affirmed the trial court's decision on the issue of Appellee's pay. The Appellate Division in FSM v. Falcam also held that the Appellee had a constitutionally protected interest in continued employment with the FSM National Government and that the Appellee was entitled to notice and an opportunity to be heard before his termination and withholding of salary.

     While the decision in FSM v. Falcam provides this Court guidance on the issue of enforceability of an illegal employment contract, the facts in FSM v. Falcam are significantly different than the facts in this matter. Falcam was hired as an FSM National Government employee pursuant to the normal personnel procedures. Plaintiff was not hired pursuant to any public service system established by Lelu Town ordinance or regulation. Plaintiff executed a contract to perform specific services for an agreed length of time, for calendar year 1998. There was no promise or expectation of continued employment of the Plaintiff by LMG after the expiration of the contract.

     Another important distinction between the FSM v. Falcam case and this matter is that in the Falcam case, the employee worked for ten months without being paid his salary. The award for salary by the trial court, as affirmed by the Appellate Division, was awarded as back pay for the period of time that Falcam worked for the FSM National Government without any salary. In this case, Plaintiff was paid salary for all work performed. There is no salary claim made by the Plaintiff for unpaid work. Despite the fact that the second contract failed to receive the required support from the Lelu Town Council as required by the Lelu Town Municipal Charter, LMG did pay the Plaintiff for all work performed under the second written contract. Unlike in Falcam, the Defendants in this case have compensated the Plaintiff for all work that Plaintiff performed under the second contract. Nanpei v. Kihara, 7 FSM Intrm. 319 (App. 1995); Richmond Wholesale Meat Co. v. Kolonia Consumer Coop. Ass'n (I), 7 FSM Intrm. 387 (Pon. 1996).

     This Court has carefully considered the second written contract executed by the Plaintiff and Defendant LMG. This Court has considered the public policy as applicable to the contract in this case. This Court concludes that public policy weighs against the enforcement of the second written contract, executed in violation of the provisions of Lelu Town Municipal Charter. The conduct of the elected and appointed officials of Lelu Municipal Government is governed by the provisions of the Lelu Town Municipal Charter. Public policy supports the actions of these municipal leaders to be made in accordance with their municipal charter provisions. Accordingly, the Court declines to enforce the second written contract made between the Plaintiff and LMG on the grounds that public policy weighs in favor of enforcing the provisions of the Lelu Town Municipal Charter and weighs against enforcement of a contract made in violation of those Charter provisions. Plaintiff's breach of contract claim fails.

2. Trespass to chattels

     This Court could not find any reported cases in the Federated States of Micronesia which establish the required elements for the tort of trespass to chattels. Therefore, it is appropriate to consider the law of the United States for guidance. United States common law decisions are an appropriate source of guidance for this court for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the Federated States of Micronesia. Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 293-94 (Pon. 1998).

     The tort of trespass to chattels, or personal property, is the intentional use of or interference with a chattel which is in the possession of another without justification. Trespass includes the unlawful taking away of personal property of another. 75 Am. Jur. 2d Trespass  9 (1974). Whoever commits or causes another to commit an act of trespass is liable for the trespass and its damages. Id.

[10 FSM Intrm.235]

 29.

     In this case, there was substantial evidence to support finding that the Plaintiff's personal property had been interfered with or taken away by another person. Plaintiff had possession of his desk, which was moved to another location in the same building without his consent. However, Plaintiff did not prove that either Defendant interfered with or took away the Plaintiff's property from its designated location at the Lelu Municipal Building. There was testimony from witnesses who heard rumors regarding the identity of the alleged actors who interfered with Plaintiff's property. All of the witnesses testified that they were not involved in movement or interference with Plaintiff's property. None of the witnesses had personal knowledge pertaining to movement or interference with Plaintiff's property.

     Plaintiff did not carry his burden of proof to show that Defendant Lelu Municipal Government moved, interfered with or took away the Plaintiff's property by a wrongful act. Plaintiff did not carry his burden of proof to show that Defendant Lelu Town Council moved, interfered with or took away the Plaintiff's property by a wrongful act.

     There is no dispute that the Plaintiff's property was in fact interfered with and taken from its original designated location at the Lelu Municipal Building, without the Plaintiff's consent. There is also no dispute that the Plaintiff's property has not been recovered to date. However, Plaintiff did not prove by a preponderance of the evidence that Defendant Lelu Town Council, or any of its members, were the actors who interfered with or took away the Plaintiff's property through a wrongful act. Plaintiff also did not prove by a preponderance of the evidence that Defendant Lelu Municipal Government, its former Mayor or any of its employees interfered with or took away the Plaintiff's property through a wrongful act. Plaintiff also did not prove, by a preponderance of the evidence that either Defendant caused another person to interfere with or take the Plaintiff's property. Plaintiff cannot recover on his claim for trespass to chattels.

3. Conversion

     The elements of an action for conversion requires proof of the following elements:

1. Plaintiff's ownership and right to possession of the property;

2. Defendant's wrongful or unauthorized action of dominion over the Plaintiff's property, inconsistent with or hostile to the owner's right; and

                    3. Damages.

Bank of Hawaii v. Air Nauru, 7 FSM Intrm. 651, 653 (Chk. 1996). See also Restatement (Second) of Torts  222A (1965); 18 Am. Jur. 2d Conversion  2 (rev. ed. 1985).

     In this case, there was substantial evidence to support the first element of the tort of conversion. Plaintiff was the owner and had the right to possession of the items claimed stored in his desk and workspace at the Lelu Municipal Building. These items, owned and possessed by the Plaintiff, included his college diploma, college transcripts, reference letters, construction designs, blueprints, textbooks, various drawing and measuring tools. Plaintiff did not prove the second element required for the tort of conversion: that either defendant converted the Plaintiff's property through a wrongful or unauthorized act. Plaintiff did not carry his burden of proof to show that Defendant Lelu Municipal Government, its former Mayor or any of his employees converted the Plaintiff's property by a wrongful act. Plaintiff did not carry his burden of proof to show that Defendant Lelu Town Council or any of its

[10 FSM Intrm. 236]

members converted the Plaintiff's property by a wrongful act.

     There is no dispute that the Plaintiff's property was removed from its designated location at the Lelu Municipal Building, without the Plaintiff's consent. There is also no dispute that the Plaintiff's property has not been recovered to date. However, Plaintiff did not prove by a preponderance of the evidence that either Defendant in this case converted the Plaintiff's property by a wrongful act. Plaintiff cannot recover on his claim for conversion.

4. Negligence

     Only when there is a duty of care, breach of this duty, damage caused by the breach, and determination of the value of the damage can there be a liability for negligence. A plaintiff must show that the defendants owed the plaintiff a duty of care, and that the defendants breached this duty. The plaintiff must also show that his injuries were caused by the breach and that a value can be assigned to his injuries. Sigrah v. Timothy, 9 FSM Intrm. 48, 53 (Kos. S. Ct. Tr. 1999). The common law definition of negligence includes the failure to use such care as a reasonably prudent person would use in a similar situation. Id.

     In this case, the Defendants had a duty of care to safeguard Plaintiff's property that were claimed stored in his desk and at his work area in the Lelu Municipal Building. Defendants had possession of the keys to unlock the doors of the Lelu Municipal Building, including the door to the upstairs office where Plaintiff's desk and property were located. Plaintiff did not have a key to any doors of the Lelu Municipal Building.

     United States common law decisions are an appropriate source of guidance for this court for tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the Federated States of Micronesia. M/V Miyo Maru No. 11, 8 FSM Intrm. at 293-94. Negligence may include a condition created by the negligent conduct of a government entity, or its employees, a condition which created a reasonably foreseeable risk of the kind of injury which afflicted the Plaintiff, and that the injury proximately caused by the condition. 1 Shepard's editorial staff, Civil Actions Against State and Local Government  3.23, at 267-68 (2d ed. 1992). In order to be liable for a breach of duty of care, the breach must cause damage. Nena v. Kosrae, 5 FSM Intrm. 417 (Kos. S. Ct. Tr. 1990).

     In this case, a condition was created by the negligent conduct of an official or employee of the Lelu Municipal Government. The act of losing the key, or providing the key to allow one or more unauthorized persons access to the Lelu Municipal Building and the office area breached the duty of care to protect the Plaintiff's property. The act of losing the key, or providing the key to allow access to the Lelu Municipal Building created a reasonably foreseeable risk that property in the Building would be moved, damaged or removed from the premises. This is the kind of the injury which was suffered by the Plaintiff. Plaintiff's property was moved and removed from its designated location. The condition of losing the key, or providing the key to unauthorized persons to allow access to Lelu Municipal Building proximately caused the Plaintiff's injury: loss of his personal property. Defendants are liable for tort of negligence.

5. Civil Rights Violation.

     Plaintiff asserted a civil rights violation in that the Defendants failed to give the Plaintiff a hearing prior to termination of his contract. Plaintiff's argument is based upon the Defendants acting under color of authority. Persons liable for civil rights violations include government entities. Conrad v. Kolonia Town, 8 FSM Intrm. 183, 195 (Pon. 1997).

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     The Kosrae State Constitution, Article II, Section 1(b) provides that a person may not be deprived of property without due process of law. This Court has ruled, in the case of Solomon Asher v. Eugene Palsis, Civil Action No. 58-95, that, government employment, to be property protected under the Constitution, the employment right must have a claim of entitlement based upon governmental assurance of continual employment or dismissal only for specified reasons. This Court also held that there must be some governmental assurance of continual employment. Asher v. Palsis, Civil Action No. 58-95, Order granting Defendant's Motion for Summary Judgment (Dec. 21, 1998).

     To be property protected under the Federated States of Micronesia and Kosrae State Constitutions, the employment right must be based on governmental assurance of continual employment or dismissal for only specified reasons. Edwin v. Kosrae, 4 FSM Intrm. 292, 302 (Kos. S. Ct. Tr. 1990). A person who has been hired under an employment contract, for a specific length of time, with no provisions for renewal of the contract and no entitlement for renewal of the contract, does not have a property interest in his continued employment and is not entitled to a hearing before termination. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). In comparison, a person who has been employed for twelve years under a series of one year contracts could prove that by that length of employment, there was unwritten claim to continued employment under tenure. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).

     In this case, Plaintiff was hired under a contract for a specific length of time for performance of services. Plaintiff's second written contract with the former Mayor, by its own terms, would have expired at the end of 1998. There were no provisions for renewal of the contract. There was no governmental assurance of continual employment beyond the contract terms. Accordingly, the Plaintiff did not have a property interest in continued employment and was not entitled to a hearing before termination.

     The Plaintiff argued that the case of Ponape Construction Co. v. Pohnpei, 6 FSM Intrm. 114 (Pon. 1993) recognizes due process requirements for termination of contracts. In the Ponape Construction Co. case, the Plaintiffs had entered into an informal contract with the defendant State of Pohnpei to conduct repairs on a causeway in exchange for dredging coral for other commercial purposes. In the Ponape Construction Co. case, the Plaintiffs, as injured parties, were entitled to an administrative procedure under the Pohnpei Government Liability Act. The trial court found the existence of a property interest that is premised upon an enforceable contract. The Ponape Construction Co. case was appealed to the Appellate Division. The matter was treated solely as an action for breach of a dredging contract. The issue of due process rights was not addressed by the Appellate Division.

     As a general proposition, a governmental entity's breach of a contract, without more, does not constitute a due process violation. Island Dev. Co. v. Yap, 9 FSM Intrm. 18, 20 (Yap 1999). In the Island Development Co. case, Plaintiff had alleged that the State of Yap had breached two contracts: a contract to conduct causeway repair and a contract to repairs water catchment systems. The court in Island Development Co. distinguished that case from the case of Ponape Construction Co. and its reliance upon the case of Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983). The Court in Island Development Co. found that Suldan applied to circumstances where the employee, a member of the FSM Public Service System, did have a claim of entitlement based upon governmental assurance of continual employment or dismissal for only specified reasons. The case of Island Development Co. involved a breach of construction contracts by a State governmental entity. The Court held that this breach of contract by the State, without more, does not give rise to a due process violation.

     This Court finds the reasoning in Island Development Co. v. Yap to be more sound and adopts its approach. The cause of action based upon contract law provides an adequate remedy to breach of

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contracts between individuals and municipal governments.

     Further, a civil rights claim against a municipal government will be dismissed when it fails to allege that the officials were acting pursuant to governmental policy or custom when the allegedly unconstitutional actions occurred or when it fails to allege that the violations were caused by the officials who were responsible for final policy making, and when those officials made a deliberate choice to follow a course of action chosen from various alternatives. M/V Miyo Maru No. 11, 8 FSM Intrm. at 296. In this case, Plaintiff did not allege that the former Mayor's termination of the second written contract with the Plaintiff was made pursuant to governmental policy or custom. There was no hearing required by state law or municipal ordinance or regulation prior to termination of the second written contract. There was no administrative procedure, or other hearing requirement applicable to second written contract. There was no violation of municipal or state law when the LMG breached the contract with Plaintiff. Defendants did not violate the civil rights of the Plaintiff. Plaintiff's claim based upon violation of civil rights must fail.

6. Damages.

     Plaintiff requested several components for his award of damages in this case. First, for breach of contract, Plaintiff requested the amount of $5,000. This amount represents the value of the second written contract remaining after Plaintiff was terminated in March 1998. This damage amount reflects full time employment, 40 hours a week, from April through December 1998.

     Plaintiff also seeks the amount of $1,000 for emotional distress, humiliation, loss of dignity, $10,000 for Plaintiff's loss of personal property from the Lelu Municipal Building, and punitive damages in the amount of $5,000. Damages for Defendant's negligence, which resulted in Plaintiff's loss of property, and pain and suffering, are awarded in this matter.

     A person injured through the negligence of another is entitled to an award of damages for pain and suffering. Asher v. Kosrae, 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998). Awarding damages for pain and suffering is one of the most difficult tasks of a court because the determination lies solely in the discretion of the trier of fact and no fixed rules exist to aid in the determination. Primo v. Refalopei, 7 FSM Intrm. 423, 434 (Pon. 1996); Asher v. Kosrae, 8 FSM Intrm. 443 (Kos. S. Ct. Tr. 1998). When there is no direct evidence of the amount of damages sustained, nor the amount of money that can compensate for an injury, the court, as trier of fact, must assess the proper level of compensatory damages for that injury. Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411 (Pon. 1988).

     Our Court has previously ruled that a person who is injured through the negligence of another is entitled to an award of damages for pain and suffering. To recover for pain and suffering a plaintiff need only show "suffering," not both "pain" and "suffering" as the term includes not only the physical pain but also fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Ludwig v. Mailo, 5 FSM Intrm. 256, 262 (Chk. S. Ct. Tr. 1992). Based upon the evidence submitted at trial of this matter, the Court awards the amount of $1,000 for Plaintiff's pain and suffering, humiliation, loss of dignity and sentimental value associated with the loss of his property, due to Defendants' negligence.

     Plaintiff requested the amount of $10,000 for loss of his property, due to Defendants' negligence. Damages for harm to personal property is the difference between the value of the property before the tort and its value afterwards. In this case, the value of Plaintiff's property before its loss was provided by Plaintiff's testimony and by documentary evidence showing the cost of substantially similar items. Plaintiff submitted proof of loss of engineering books and items in the amount of $1,300. The value of these properties following the negligent conduct by the Defendants' is zero, as the items

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were never recovered. Damages for loss of Plaintiff's engineering books and items, based upon the evidence presented at trial, are awarded in the amount of $1,300. The Plaintiff also claimed the loss of his college transcripts, college diploma and reference letters. Plaintiff did not submit any evidence regarding costs to replace these items. The Court takes judicial notice regarding the replacement costs for these items, which are easily ascertainable and available on the University of Guam Internet site and from the University of Guam Office of Admissions and Records. Kos. Evid. R. 201. The maximum cost of obtaining an official academic transcript is $25.00. The cost of obtaining a replacement diploma is $40.00. Damages for the loss of the Plaintiff's college transcripts and diploma are awarded in the amount of $65.00. Plaintiff did not present any evidence regarding the value of the lost reference letters. Instead, Plaintiff requested damages for the "sentimental value" of the lost reference letters. No additional damages are awarded for "sentimental value" of the lost reference letters. Plaintiff's pain and suffering has already been compensated, and these damages already encompass the "sentimental value" of the lost items. Damages are awarded for the Plaintiff's loss of engineering books and items, college transcripts and diploma, and reference letters in the total amount of $1,365.

     Finally, Plaintiff requested punitive damages in the amount of $5,000. Punitive damages may be awarded when a tort was committed with actual malice, or deliberate violence, or the acts complained of were wanton, reckless, malicious and oppressive and are given to enhance compensatory damages. Punitive damages depend on the existence of compensatory damages and cannot be awarded in the absence of compensatory damages. Primo, 7 FSM Intrm. at 435-36 & n.29. Punitive damages are not recoverable for ordinary negligence. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63, 67 (Chk. 1997); Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994). In this case, Defendants were found liable for the tort of negligence only. Punitive damages may not be recovered for ordinary negligence. Accordingly, Plaintiff's request for punitive damages is denied.

JUDGMENT.

     Based upon the reasoning set forth above, let judgment be entered in favor of the Plaintiff and against the Defendants, in the amount of $2,365.00

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