FSM SUPREME COURT
APPELLATE DIVISION
Cite as Phoenix of Micronesia, Inc. v. Mauricio,
9 FSM Intrm. 155 (App. 1999)

[9 FSM Intrm. 155]

PHOENIX OF MICRONESIA, INC.,
Appellant,

vs.

JOSEPH MAURICIO,
Appellee.

APPEAL CASE NO. P3-1998

OPINION

Argued:  April 23, 1999
Decided:  May 26, 1999

BEFORE:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Temporary Justice, FSM Supreme Court*

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:
For the Appellant:     Delson Ehmes, Esq.
                                    P.O. Box 1018
                                    Kolonia, Pohnpei FM 96941

For the Appellee:      Ron Moroni, Esq.
                                    P.O. Box 1618
                                    Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Constitutional Law ) Declaration of Rights
     The Declaration of Rights (article IV of the FSM Constitution) protects persons from acts of the governments, and those acting under them, established or recognized by the Constitution, and does not create causes of action against private parties.  Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 157 (App. 1999).

Choice of Law; Torts
     The states' role in tort law is predominant.  Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 158 (App. 1999).

[9 FSM Intrm. 156]

Choice of Law
     The FSM Supreme Court's function and goal in diversity cases where state law provides the rule of decision is to apply the law the same way the highest state court would, and that if there is a decision of the highest state court it is controlling and the FSM Supreme Court will apply it.  But if there is no such state court decision the FSM Supreme Court must still exercise its jurisdiction and try to decide the case according to how it thinks the highest state court would.  In the future, the highest state court could decide the issue differently and future decisions of the FSM Supreme Court would then apply that decision.  Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 158 (App. 1999).

Custom and Tradition; Evidence ) Burden of Proof
     In a civil case when a defendant seeks to advance Pohnpeian customary practice as a defense, the burden is on the defendant to establish by a preponderance of the evidence the relevant custom and tradition.  Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 158-59 (App. 1999).

Torts ) Invasion of Privacy
     A photograph that is used to make a postcard offered for sale is being used primarily for trade purposes.  Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 159 (App. 1999).

Torts ) Damages; Torts ) Invasion of Privacy
     A plaintiff who is proud to participate in a ceremony can suffer embarrassment and emotional upset over the commercialization of a photograph of his participation in the ceremony.  Because the two findings are not inconsistent and there is evidence in the record to support this conclusion, the damages awarded the plaintiff for invasion of privacy will be affirmed as not clearly erroneous.Phoenix of Micronesia, Inc. v. Mauricio, 9 FSM Intrm. 155, 159 (App. 1999).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This appeal arises from the trial court's August 4, 1998 judgment based on its award of damages, Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 411 (Pon. 1998), and its finding that Phoenix of Micronesia, Inc. ("Phoenix") was liable to Joseph Mauricio for invasion of privacy and unjust enrichment, Mauricio v. Phoenix of Micronesia, Inc., 8 FSM Intrm. 248 (Pon. 1998).  We affirm.  Our reasoning follows.

I.  Background
     Sometime between 1988 and 1992 (probably in November or December, 1988), Akira Kobayashi, a Phoenix employee, photographed Joseph Mauricio wringing sakau through hibiscus bark over a sakau stone during a traditional kamadipw feast given by the Nanmwarki of Kitti.  Mauricio, a Kitti resident, was one of those responsible for preparing the sakau for the feast.  Phoenix produced a postcard from the picture.  It made 500 copies, which were offered for sale on Pohnpei.

     On April 18, 1994, Mauricio filed suit against Phoenix.  He brought four claims: 1) commercial appropriation of his image or likeness, 2) false light invasion of privacy, 3) unjust enrichment, and 4) punitive damages.  In its defense Phoenix contended, among other things, that Mauricio failed to state a claim of action for which relief could be granted because there was no invasion of privacy cause of action in Pohnpei and that the photographing and the picture's use as a postcard was authorized by the Nanmwarki of Kitti and under the circumstances no other consent was needed.

[9 FSM Intrm. 157]

     The trial was bifurcated into a liability phase and a damages phase.  After the liability phase, the trial court concluded that Phoenix was liable for unjust enrichment and for a type of commercial appropriation that the court had found actionable in Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451 (Chk. 1994) because the trial court found that the postcard was used for trade or advertising purposes, Mauricio was identifiable from the postcard and the picture's use was unauthorized.  Mauricio, 8 FSM Intrm. at 259-61.  The court also found that Mauricio was not shown in a false light so Phoenix prevailed on that claim.  Id. at 262.  The punitive damages issue and the amount of compensatory damages were left to be considered in the trial's second phase.

     In the second phase, the court denied punitive damages because Phoenix thought it had obtained the necessary consent its actions lacked the needed malice.  Mauricio, 8 FSM Intrm. at 417.  Compensatory damages were awarded, but only for invasion of privacy because the court concluded that it was inconsistent for a plaintiff who wishes to recover for invasion of privacy to also claim the right to participate in the profits of publication and because when a privacy cause of action is brought together with another cause of action based on the same objectionable behavior, usually only one recovery may be awarded.  Id. at 418-19.  The award was $3,000.

II.  Issues on Appeal
     The appellant, Phoenix of Micronesia, Inc., raises four issues on appeal:  1) that the court erroneously recognized a cause of action for invasion of privacy in Pohnpei; 2) that the court erroneously found as a matter of law that the Nanmwarki of Kitti lacks the authority to consent to the photograph's use as a postcard, 3) that the court erroneously held the unauthorized use of Mauricio's image to be actionable when it was incidental and in the context of a public event, and 4) that the court erroneously awarded Mauricio damages for embarrassment and emotional upset when the court had previously found that Mauricio had openly performed a service that he had admitted that he was proud to do.

III.  Discussion
A.  Recognition of an Invasion of Privacy Cause of Action
     Phoenix contends that the FSM Supreme Court erred in  recognizing an invasion of privacy claim in Pohnpei and that in doing so it impermissibly legislated for the state (thus usurping the Pohnpei Legislature's power) because the states hold the primary lawmaking powers for torts.  Phoenix also contends that the trial court's use of section 5, article IV of the FSM Constitution to create an invasion of privacy cause of action in Pohnpei was improper because article IV only creates protections against government and does not create rights against private persons.

     It is true that the Declaration of Rights (article IV of the FSM Constitution) protects persons from acts of the governments, and those acting under them, established or recognized by the Constitution, and does not create causes of action against private parties.  Pau v. Kansou, 8 FSM Intrm. 524, 526 (Chk. 1998); Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995). But our review of the record indicates that the trial court did not rely on section 5 to create an invasion of privacy cause of action.  It only used that section to illustrate that the concept of privacy was not unknown in Pohnpei.

     Phoenix relies on Edwards v. Pohnpei, 3 FSM Intrm. 350 (Pon. 1988) for the proposition that tort law is primarily state law and that the FSM Supreme Court's goal is to try to apply that law the way the highest state court would.  It contends that the FSM Supreme Court thus could not recognize or "legislate" an invasion of privacy tort into existence in Pohnpei and that that right should be

[9 FSM Intrm. 158]

exercised by the Pohnpei Legislature.

     Phoenix misunderstands the import of Edwards.  Edwards does recognize the predominance of the states' role in tort law and that the FSM Supreme Court's goal is "to apply the law the same way the highest state court would," and that if there is a decision of the highest state court it is controlling and the FSM Supreme Court would apply it.  Edwards, 3 FSM Intrm. at 360 n.22.  But if there is no such state court decision the FSM Supreme Court must still exercise its jurisdiction and try to decide the case according to how it thinks the highest state court would.  Id. at 360 & n.22.  We conclude that the Edwards court correctly stated the FSM Supreme Court's function in diversity cases where state law provides the rule of decision. This does not mean that when the highest state court has not spoken on the issue the FSM Supreme Court is legislating for the state.  In the future, the highest state court could decide the issue differently and future decisions of the FSM Supreme Court would then apply that decision.  The state legislature is always free to enact statutes on the subject at anytime.

     Phoenix contends that in the absence of an enactment of the Pohnpei Legislature or a Pohnpei Supreme Court decision the FSM Supreme Court must decline to recognize an invasion of privacy tort in Pohnpei.  That would be an abdication of the FSM Supreme Court's responsibility to exercise its jurisdiction and to try to decide the case as the highest state court would.  Phoenix offers nothing to show that the state court would have decided the case differently.  The trial court is hereby affirmed on its conclusion that invasion of privacy is actionable in Pohnpei.

B.  Nanmwarki's Authority to Consent to the Photograph's Use
     Phoenix contends that the court erred in finding that Mauricio's privacy had been invaded because the Nanmwarki of Kitti had authorized the use of Mauricio's image on a postcard and under Pohnpei custom that was all the authorization needed.  Each party presented its own expert witness on whether under Pohnpei and Kitti custom the Nanmwarki had the authority to consent to the taking of photographs at a traditional feast given by the Nanmwarki and to authorize making a postcard out of the pictures.  The trial court concluded that the use of Mauricio's image was unauthorized because Mauricio did not consent and his consent was necessary.  This conclusion was in line with the testimony of Mauricio's expert. Phoenix's expert had testified that under custom the Nanmwarki's consent was sufficient.

     Phoenix seems to say that its expert was right and Mauricio's expert was wrong; therefore the court erred when it followed Mauricio's expert's opinion instead of Phoenix's because Phoenix's expert was better.  (Phoenix's expert had been the field researcher for Mauricio's expert when Mauricio's expert had prepared his doctoral thesis on Pohnpei custom.)  The trial court indicated that Phoenix could present the current Nanmwarki's1 affidavit or witness testimony as to what the custom and tradition were when Mauricio's picture was taken.  Order Denying Defendant's Motion for Summary Judgment at 4-5 (May 27, 1996) (current Nanmwarki of Kitti ruled not indispensable party that must be joined).  This was not done.  After trial, the court made its determination that there was no custom and tradition governing the taking of photographs for commercial use and that therefore Mauricio's consent was needed for its use.  Mauricio, 8 FSM Intrm. at 261.

     The trial court evidently gave greater weight to Mauricio's expert's evidence than to Phoenix's expert's.  In a civil case when a defendant seeks to advance Pohnpeian customary practice as a defense, the burden is on the defendant to establish by a preponderance of the evidence the relevant

[9 FSM Intrm. 159]

custom and tradition.  Senda v. Semes, 8 FSM Intrm. 484, 497 (Pon. 1998).  The trial court found that Phoenix did not.  The trial court's decision is not clearly erroneous.  Therefore we affirm the trial court on this issue as well.

C.  Commercial Use of Mauricio's Image
     Phoenix contends that the trial court erroneously held that Mauricio's image was used predominately for a commercial purpose.  Phoenix contends that the postcard portrays a matter of public interest ) the sakau ceremony at a public event, a traditional feast given by the Nanmwarki and that Mauricio's depiction was only incidental to this portrayal of a matter of public interest and thus not actionable as commercial usage.  The court found that the postcards' use was commercial and for trade and advertising purposes.

     The postcard was an item offered for sale by a commercial enterprise.  Phoenix hoped to profit from it and did not continue producing the postcard because it had not sold well.  The postcard, that is, the photograph itself, was thus used as an article of commerce ) a commercial product or an item of trade.  The photograph's use was not merely incidental to the portrayal of an event of public interest.  It, for instance, did not accompany a newspaper article about a particular traditional feast or about traditional feasts in general.  Its use was to create a product for commercial sale.  In Faber v. Condecor, Inc., 477 A.2d 1289, 1293 (N.J. Super. Ct. App. Div. 1984) (defendant's frames included plaintiffs' photo) the "plaintiffs' picture was used with the product as it was offered for sale.  It was thus used directly for trade purposes."  In the present case, Mauricio's photograph was more than just "used with the product as it was offered for sale."  It essentially was the product offered for sale.  We therefore affirm the trial court on this issue on the ground that the postcard was an article of commerce and thus used primarily for trade purposes. 2

D.  Award of Damages for Embarrassment and Emotional Upset
     Phoenix contends that the trial court erred in awarding damages for emotional upset and embarrassment.  It contends that this is inconsistent with the trial court's earlier  findings that Mauricio was proud to participate in the sakau ceremony that was photographed.

     Phoenix misconstrues the trial court's findings.  The trial court did find that Mauricio was proud to take part in the sakau ceremony and the traditional feast. What the trial court found embarrassed and upset Mauricio was the commercialization of a photograph of his participation in that ceremony, not his participation in the ceremony itself.  The two findings are not inconsistent, and there is evidence in the record to support this conclusion.  Because the finding of embarrassment and emotional upset and the damages awarded for it were not clearly erroneous, it is affirmed.

IV.  Conclusion
     Accordingly, the trial court's conclusion and award of damages is affirmed and this appeal is

[9 FSM Intrm. 160]

hereby dismissed.

Footnotes:
 
1.  The Nanmwarki who had presided over the feast when Mauricio's picture was taken had died in 1992.

2.  The trial court's finding that the postcard was used for advertising purposes and to promote Phoenix's tourist service appears to be without any support in the record and thus clearly erroneous.  The record shows that the tourist services were provided by a different company, Phoenix Marine Services, that is not a party to this lawsuit.  The only writing on the card is fine print noting that it was taken on Pohnpei by Phoenix of Micronesia, Inc.  If it advertised anything it was Phoenix's ability to make postcards.  Nevertheless the trial court's finding that the postcard was used primarily for commercial purposes was correct because the postcard was definitely used for trade purposes.
 
                                                                                                                                                                                                                                                                                                           
V````U:rExtens@]Statue`Class6Lrefs clig-side e@s' Ses! AE AMEND`TLOCALEbeginTi@e zZ `"datetAj whenLCSE w(as tvoPked.6B ydjT \`biΟK n#& beAqru ÷end%JJ`B8@E%th q%finXish@ca9ng`)eZ(End( error"6A`B߅"E co MifmyQh;e o abor2sCpGuidN `JpnK04nS `woQ(7 GUIDlog2g4a j`0bN@B [%pF2GlU!E50LC - Com0plet&7NotqSupp[yCs : CbC SaCw 'A@=a sucq'fully, !OayDcould n  !,R might5?vc$ 3 doesrs rd]{]a, @]vq]|qU0K '[009\ [EvXSourQ[nt[_[eqssage sB0a\`RJR4J? 0". ~;33QRSthP?cP`h' _LapplyUp6bp U_ _rÔ 0 @ߏ Ko t|ko o nt a L݆\ Ldr q} q Unique I^D t K0!|000 @0,u00ג00"? E0`0Link/##re1O0O0mpO0ی"(f #zdj٢Bm 0 f: tE/%!!UnK $ n@ À n,HPsi`ts$~n1  e1rSystempFile#T``(&Ǖ @K@gg-gselected8BureauB~!o#*`Ev;Unknodwned<_C/9/D q| P/A0/V+Sop~000i,'+Adw; ve5tA6TGPO$Ln>'@&r)rrlastW1eTiYG L+Qa dpt1nE$Z@@ S_$vAdRSOP_0olicDy0eti@ng:'p4PB gPolivg2Q!qk Iq/a0{p000) 50r00Uop00& "10jp003e-g0 ciJRegiyk and. ,p"/.Y@uUserEC^J3Obd77b ^\Yi @0&' !h;p'/jErKeyVp WDalueSq8vq#`! !`CȽ["K;3~@KQj2( 30Aupq{2Ӱ0 0?0G0y000000{2\+1Auth0{deCer`tificGWPc@ྕK]@ W%eexpiqpxonDA _%EGOfril#Ah