FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P3-2011
Civil Action No. 2003-023

WILLIAM IRIARTE, LILLY-JEAN IRIARTE, and AMBROS & CO.,
Appellants,

vs.

INDIVIDUAL ASSURANCE CO.,
Appellee.
__________________________________________

ORDER DENYING REHEARING

Decided: September 13, 2012

BEFORE:

Hon. Martin G. Yinug, Chief Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Appellants: Mary Berman, Esq.
 (the Iriartes) P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Rehearing
Ordinarily, petitions for rehearing are summarily denied, but, when clarification may be helpful, some reasons may be given. Iriarte v. Individual Assurance Co., 18 FSM Intrm. 406, 408 (App. 2012).

Appellate Review - Rehearing; Contracts - Breach
When the petitioners' breach-of-contract liability is based solely on the breach of their contractual obligation to immediately remit to the appellee all money received or collected on its behalf and when it is undisputed that they did not immediately remit to the appellee all money received on its behalf, the petitioners would still be liable to the appellee on its breach-of-contract cause of action and the judgment would remain unaltered. Iriarte v. Individual Assurance Co., 18 FSM Intrm. 406, 408 (App. 2012).

Appellate Review - Standard - Civil Cases - Factual Findings
An appellate court does not make factual findings. Iriarte v. Individual Assurance Co., 18 FSM Intrm. 406, 408 (App. 2012).

Appellate Review - Rehearing; Torts - Conversion
When even if a petitioner had not signed any of the converted checks, that would not alter the trial court's finding that she had authorized another to sign her name and thus the result would not change and the petitioners would still be liable to the appellee. Iriarte v. Individual Assurance Co., 18 FSM Intrm. 406, 408 (App. 2012).

Appellate Review - Rehearing
An appellate court must deny a petition for rehearing when, even if it had misapprehended or overlooked a certain point of fact or law, the result in the case would not change. Iriarte v. Individual Assurance Co., 18 FSM Intrm. 406, 408 (App. 2012).

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COURT'S OPINION

PER CURIAM:

On August 28, 2012, appellants William Iriarte and Lilly-Jean Iriarte, seeking reconsideration of our opinion in Appeal Case No. P3-2011, filed Appellants Iriartes' Petition for Rehearing. Appeal Case No. P3-2011 is an appeal from Civil Action No. 2003-023. The docket number on the petition the Iriartes submitted was Appeal Case No. P3-2009, which was an earlier appeal from Civil Action No. 2003-023. Since the petition was placed in the P3-2009 appellate file, we were unaware of it and we issued our mandate for Appeal Case No. P3-2011.

The petition's existence has now been brought to our attention. The petition would have been timely filed if it had been filed in the correct appellate file. The two appellate docket numbers are similar and the confusion is understandable because both numbers were appeals from the same trial division case. We will therefore treat the petition as if it were one timely filed under the correct docket number and also, because our mandate has already issued, as if it were a motion to recall the mandate. (This does not mean that future filings submitted with the wrong docket number will always be treated as timely filed. It is just that in this particular instance, it seems appropriate.)

Ordinarily, petitions for rehearing are summarily denied, but, when clarification may be helpful, some reasons may be given. Goya v. Ramp, 14 FSM Intrm. 305, 307 (App. 2006); Jano v. FSM, 12 FSM Intrm. 633, 634 (App. 2004); Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 482 (App. 1996). This is such a case.

The Iriartes contend that we erred or misapprehended two points of law. They assert 1) that "the Court's finding that Lilly Iriarte signed any IAC check is clearly erroneous," Iriartes' Pet. Reh'g at 2 (Aug. 28, 2012), because the court erred in interpreting FSM Evidence Rules 1002 and 1004, and 2) that, since the court failed to identify which check(s) had Lilly Iriarte's true signature, the Iriartes cannot be held liable under the agency contract between them and the Individual Assurance Company ("IAC").

The trial court held the Iriartes liable to IAC on three causes of action - breach of fiduciary duty, breach of contract, and conversion. Individual Assurance Co. v. Iriarte, 16 FSM Intrm. 423, 436 (Pon. 2009). We affirmed on all three grounds. Whether Lilly Iriarte ever signed any checks has no bearing on the outcome of the breach-of-contract liability. That liability is based solely on the Iriartes' breach of their contractual obligation to "immediately remit to [IAC], all money received or collected on [IAC's] behalf." General Agent Contract § VIII.1 (Jan. 1, 1995). The Iriartes do not dispute that they did not immediately remit to IAC all money received on IAC's behalf. Thus, even if the Iriartes prevailed on their arguments in their petition, the result would not change. They would still be liable to IAC on its breach-of-contract cause of action. The judgment would remain unaltered.

The Iriartes assert that we made a clearly erroneous finding that Lilly Iriarte signed one or more checks. That finding was made by the trial court. We affirmed it because there was substantial evidence in the record to support it. As an appellate court, we do not make factual findings. In re Sanction of George, 17 FSM Intrm. 613, 616 (App. 2011); Goya, 14 FSM Intrm. at 307 n.1. But, even if Lilly Iriarte had not signed any of the checks, that would not alter the trial court's finding that she had authorized Emmy Santos to sign her name. Thus, the result would not change on IAC's other causes of action either. The Iriartes would still be liable to IAC.

We must deny a rehearing when, even if we had misapprehended or overlooked a certain point of fact or law, the result in the case would not change. Berman v. Pohnpei, 17 FSM Intrm. 464, 465 (App. 2011); Goya, 14 FSM Intrm. at 307. Accordingly, the Iriartes' petition for rehearing is denied. Our previously issued mandate will not be recalled. It remains in effect.

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