Cite as Kinere v. Kosrae ,
6 FSM Intrm. 307 (App. 1993)

[6 FSM Intrm. 307]






Argued:  July 5, 1993
Decided:  December 30, 1993

     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court
     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court

For the Appellants:     Harry Seymour
                                      Charles Greenfield, Esq.
                                      Micronesian Legal Services Corporation
                                      P.O. Box 38
                                      Tofol, Kosrae FM 96944

For the Appellee:        Timothy Stumpff, Esq.
                                      Assistant Attorney General
                                      Office of the Kosrae Attorney General
                                      P.O. Box AG
                                      Tofol, Kosrae FM 96944

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     Where a part of a contract provided that the state give a landowner leftover construction materials a trial court is fully warranted to believe that, by giving the landowner the opportunity to take whatever leftover materials he wanted, the state gave him the materials.  Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993).

Appeal and Certiorari ) Standard of Review
     In determining whether a trial court's findings are clearly erroneous, an appellate court must construe the evidence in the light most favorable to the appellee.  A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a

[6 FSM Intrm. 308]

mistake has been committed.  Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993).

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MARTIN YINUG, Associate Justice:
     The appellant (Kinere) appeals a decision by the trial court in favor of the State of Kosrae.  Specifically, Kinere disputes a factual finding by the trial court that his predecessor in interest, Kinere Nena, received leftover building materials from the State in satisfaction of an oral agreement between the parties.  We conclude that the finding in question is not essential to the judgment reached.  We also conclude that neither of the findings upon which Kinere bases his appeal is clearly erroneous.  We therefore affirm the judgment of the trial court.

     Kinere acts as successor in interest to his deceased father, Kinere Nena. Kinere Nena had entered into an oral contract with the Kosrae State Government in 1986 whereby Nena agreed to relocate his house to make way for the construction of Finkol bridge in Utwe, Kosrae.  In return the State agreed to create a landfill on adjacent property, and, jointly with Mr. Nena and the Office of the Chief Magistrate of Utwe Municipality, relocate Mr. Nena's house to the new site.

     The agreement also provided that "Mr. Nena will accept any support by the Government in the area of some construction materials to facilitate the reconstruction of the dwelling house."  Finally, in the provision that is involved in this appeal, the State agreed to give Mr. Nena any leftover materials after completion of the bridge construction.

     The house was relocated on the landfill pursuant to the agreement.  

     Kinere Nena died in 1990.  There is no testimony that he ever complained to the State as to its performance of the contract.  His son, Siosi Kinere, filed suit against Kosrae State in 1991 for alleged failure to fulfill certain obligations under the contract.  The trial court ruled on July 25, 1991 in favor of the State. On appeal Kinere states, "[T]he single issue for the Appellate Division to decide is whether the trial court's finding that leftover building materials were received by Nena is clearly erroneous."

     Kinere's assignment of error relies on the following findings of the trial court:

     "The amount of the left over materials fluctuated somewhat before  the plaintiff took possession of the left over materials."

     "The evidence at trial established that Nena received some leftover materials, and that these were used in the construction of the new house."

     We recognize that there is no evidence in the record that materials were taken into possession or received by Nena after the bridge was completed. Perhaps the trial court mixed two different matters ) the testimony that Nena did receive some materials while the bridge was under construction, and that materials remaining after the bridge was finished were made available to him.

[6 FSM Intrm. 309]

     However, we do not find this possible confusion or the findings themselves material insofar as the validity of the conclusion reached by the trial court.

     The court concluded, "The contract between the State and Kinere Nena has been fully performed."  The only portion of that contract now at issue concerns the leftover materials:  the State agreed to give Mr. Nena any leftover materials after completion of the bridge construction (as earlier set out under "Part I," supra).

     After the bridge was completed, the Chief Magistrate told Nena "to take everything he [Nena] wants before everything else would be taken out."  Trial Transcript at 59, lines 4-5.  We conclude, as the trial court apparently found, that by making available this opportunity to take whatever materials Nena wanted, the government met its obligation.

     One issue before the trial court was whether the agreement to give Mr. Nena leftover construction materials had been fulfilled.  The court resolved this issue against Kinere by concluding that the contract had been "fully performed."

     The issue before us is not decided upon the ground Kinere urges, a contention centered on "possession" and "receive."

     We find the trial court was fully warranted in its conclusion based on testimony the court was entitled to believe, namely, that by giving Mr. Nena the opportunity to take whatever he wanted, the State gave him the materials.

     The issue of the leftover materials is alleged in Kinere's complaint in the following words:  "Kosrae State . . . entered into an oral agreement . . . to give plaintiff [sic] the leftover materials from the bridge construction project." Complaint para. 6.

     "Defendant has failed to perform and satisfy its obligations under the agreement in that all leftover materials from the bridge construction were not given to plaintiff [sic] . . . ."  Id. para. 9.  (The phrase "plaintiff" in the complaint more accurately should have read "plaintiff's father.")  We believe that these allegations correctly present the issue.

     Both allegations were denied by the State.  The trial court clearly concluded that the first-quoted allegation was true, and that the second allegation was not true.

     We may overturn a trial court's factual findings only if they are clearly erroneous.  FSM Civ. R. 52(a).  "In determining whether [a trial] court's findings are clearly erroneous, [an appellate] court must construe the evidence in the light most favorable to the appellee."  Ente Nazionale Per L'Energia Electtrica v. Baliwag Navigation, Inc., 774 F.2d 648, 654 (4th Cir. 1985).  That we have done.  Furthermore, "`[a] finding is "clearly erroneous" when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"  Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395,  68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948)).  We have no such definite and firm conviction.

     Judgment of the trial court is affirmed.

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