THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE
APPELLATE DIVISION
Cite as Lewis v. Haruo ,
8 FSM Intrm. 300L (Chk. S. Ct. App. 1998)

[8 FSM Intrm. 300L]

FICHIUO LEWIS et al.,
Appellants,

vs.

SASUO HARUO et al.,
Appellees.

CIVIL APPEAL NO. 35
OPINION

Argued:  December 1, 1997
Decided:  April 20, 1998

BEFORE:
Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court, presiding
Hon. Lyndon L. Cornelius, Temporary Justice, Chuuk State Supreme Court*
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court**

*Chief Justice, Kosrae State Court, Lelu, Kosrae
**FSM Public Defender, Weno, Chuuk

APPEARANCES:
For the Appellants:     Midasy O. Aisek, Esq.
                       Micronesian Legal Services Corporation
                       P.O. Box D
                       Weno, Chuuk FM 96942

For the Appellees:      Hans Williander, trial counselor
                       P.O. Box 389
                       Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Briefs and Record; Appeal and Certiorari ) Standard of Review
     If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection.  After settlement and approval by the trial justice, this statement of the evidence shall be included by the clerk of the court appealed from in the record on appeal.  When appellants have failed to avail themselves of this procedure to secure a record of the evidence for review on appeal such failure on their part gives no grounds for complaint for the absence of a record of the evidence for review by the appellate court.  Lewis v. Haruo, 8 FSM Intrm. 300L, 300m (Chk. S. Ct. App. 1998).

[8 FSM Intrm. 300m]

Appeal and Certiorari ) Standard of Review
     Findings of fact will not be set aside unless clearly erroneous, and due regard shall be given to the trial court's opportunity to judge the witnesses' credibility.  The appellate court starts its review of a trial court's factual findings by presuming the findings are correct which means that the appellant has the burden to clearly demonstrate error in the trial court's findings.  Lewis v. Haruo, 8 FSM Intrm. 300L, 300m-0n (Chk. S. Ct. App. 1998).

Appeal and Certiorari ) Standard of Review
     The trial court will be affirmed when the appellant, challenging the weight given a witness's uncorroborated testimony, has failed to furnish the appellate court with a means to review all the evidence presented to the trial justice and a nothing is found in a review of the record and briefs to indicate tat the trial justice's factual findings were clearly erroneous.  Lewis v. Haruo, 8 FSM Intrm. 300L, 300m-0n (Chk. S. Ct. App. 1998).

*    *    *    *

COURT'S OPINION
SOUKICHI FRITZ, Chief Justice:
     This is an appeal from the Trial Division judgment denying Appellants claim concerning a boundary dispute with an adjoining land owner.  The Appellant, Plaintiff in the Trial Division, sought an injunction to restrain and enjoin the Appellees, Defendants in the Trial Division, from destroying trees and removing soil or rocks from land claimed by Appellant.  The land in question is known an Onoch, Lot No. 64436, situated in Wichap Village, Moen Island, Chuuk State.

     In the Trial Division, the Appellant also claimed damages for trespass and loss of lateral support.

     Appellants filed a motion in this court requesting that the case be remanded to the Trial Division for the reason that the transcripts and recordings of testimony presented in the Trial Division had been lost and no record of the evidence was available for review.  It is for this reason that the provisions of Rule 10(c) are included in the CSSC Rules of Appellate Procedure.  Rule 10(c) states in part as follows:  "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection."
 
     Rule 10(c) provides further that after settlement and approval by the Trial Justice, this statement of the evidence "shall be included by the clerk of the court appealed from in the record on appeal."

     The Appellants failed to avail themselves of this procedure to secure a record of the evidence for review on appeal and such failure on their part gives no grounds for complaint for the absence of a record of the evidence for review by this court.

     On appeal, the Appellant asserts that the Trial Division erroneously placed undue weight on the uncorroborated testimony of Kaspar Atin, witness for the Defendants, concerning the original and proper boundary in dispute.

     In this regard, Rule 52(a), CSSC Rules of Civil Procedure, provides in part as follows:  "Findings of fact will 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."

[8 FSM Intrm. 300n]

     The appellate court starts its review of a trial court's factual findings by presuming the findings are correct which means that the appellant has the burden to clearly demonstrate error in the trial court's findings. See Cheni v. Nqusun, 6 FSM Intrm. 544, 546, 1 CSR 35, 37 (Chk. S. Ct. App. 1994).

     The decision of this court in the case of Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 19 (Chk. S. Ct. App. 1994) explains the court's position as follows:  "The reason for this heavy burden is that the trial court had the opportunity to view the witnesses as they testify and to observe their demeanor before reaching its conclusions as to the witnesses' credibility.  The reviewing court does not have the same opportunity."

     The Appellant has failed to furnish this court with a means to review all of the evidence presented to the Trial Justice.  Nonetheless we have reviewed the record on appeal including the Appellant's motions and briefs and we find nothing to indicate that the factual findings of the Trial Justice were clearly erroneous.

     The Motion to Remand filed by Appellant is denied and the judgment of the Trial Division is affirmed.
                                                                                                                                                                                                                                                                                                           
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