FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P16-2014

CARLOS ETSCHEIT SOAP COMPANY,			)											)			  (Civil Action No. 2005-007)
Appellant,					)
)
vs.							)
)
ERINE McVEY, DO IT BEST HARDWARE, a			)
business organization, and BOARD OF TRUSTEES	)
OF THE POHNPEI STATE PUBLIC LANDS TRUST,	)
)
Appellees.					)
_______________________________________________	)

	OPINION

	Argued:  August 10, 2017
	Decided:  May 11, 2018

BEFORE:

Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Camillo Noket, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

For the Appellants:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Appellees:	Marstella Jack, Esq.
(McVey & Do it Best)	P.O. Box 2210
Kolonia, Pohnpei FM 96941

For the Appellee:	Dana W. Smith, Esq.
(Board of Trustees)	Pohnpei State Attorney General
P.O. Box 1555
Kolonia, Pohnpei FM 96941

	*    *    *    *

	HEADNOTES

Appellate Review  Standard  Civil Cases  Abuse of Discretion
An abuse of discretion occurs when 1) the court’s decision is clearly unreasonable, arbitrary or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court’s findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision.  Such abuses must be unusual and exceptional; an appellate court will not merely substitute its judgment for that of the trial judge.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 530-31 (App. 2018).

Appellate Review  Standard  Civil Cases  Abuse of Discretion
A reviewing court, reviewing the record as a whole and considering evidence detracting from, as well as supporting, the respective decision, will find an abuse of discretion only if it has a definite and firm conviction, upon weighing all the relevant factors, that the court below committed a clear error of judgment in the conclusion it reached.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018).

Appellate Review  Standard  Civil Cases  Factual Findings
A trial court’s findings are presumptively correct.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018).

Appellate Review  Standard  Civil Cases  Factual Findings
When trial court findings are alleged to be clearly erroneous, an appellate court can find reversible error only:  1) if the trial court findings were not supported by substantial evidence in the record; or 2) if the trial court’s factual finding was the result of an erroneous conception of the applicable law; or 3) if after reviewing the entire body of evidence and construing the evidence in the light most favorable to the appellee, the appellate court is left with a definite and firm conviction that a mistake has been made.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018).

Appellate Review  Standard  Civil Cases  Factual Findings
To be clearly erroneous, a decision must strike the appellate court as more than just maybe or probably wrong; it must strike the appellate court as wrong with the force of a five-week-old unrefrigerated dead fish.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018).

Appellate Review  Standard  Civil Cases  De Novo; Appellate Review  Standard  Civil Cases  Factual Findings
The question of whether the facts as found (or whether the facts as found which are not clearly erroneous) are sufficient evidence to meet the plaintiff’s burden of proof is a question of law, and issues of law are reviewed de novo on appeal.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 531 (App. 2018).

Appellate Review  Standard  Civil Cases  Factual Findings; Evidence  Burden of Proof

Any purportedly erroneous trial court finding about specific boundary lines’ accuracy of the lot are safely ameliorated as harmless error, when the plaintiff’s proffer of evidence was inadequate to show that it would have developed this lot during the divested five-month period of its respective lease.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 532 (App. 2018).

Evidence  Burden of Proof
The parties have the responsibility to put forward the evidence to support their case.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 532 (App. 2018).

Evidence; Evidence  Burden of Proof
Evidence must be in the nature of facts – not conclusions or counsel’s unsupported allegations.  An argument contained in a brief does not constitute evidence.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 533 (App. 2018).

Appellate Review  Standard  Civil Cases  Factual Findings
The test to be utilized in determining the adequacy of findings (and the sufficiency of evidence) is whether they are comprehensive and pertinent to the issue at hand, in formulating a sound basis for the decision.  The trial court need not state why it did not consider an issue or facts; it need only make a finding of such essential facts as provide a basis for the decision.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 533 (App. 2018).

Constitutional Law  Due Process  Notice and Hearing; Property  Public Lands
Even though the lessee’s inertia could lead the Board to reasonably conclude that the leased lot would remain undeveloped, this dormancy did not relieve the Board from providing notice and an opportunity to be heard with regard to the improperly executed lease to a different lessee.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 534 (App. 2018).

Civil Rights  Remedies and Damages; Contracts  Damages
Actual damages are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 534 (App. 2018).

Civil Rights  Remedies and Damages; Contracts  Damages
A monetary award is envisioned to compensate for actual losses which can be readily proved and the commensurate amount is to be based on the proven harm, loss or injury suffered by the plaintiff.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 534-35 (App. 2018).

Civil Rights  Remedies and Damages
When what the plaintiff needed to show, and did not, was that it would have undertaken the lot’s development during the February through June 2005 time period, the evidence proffered by the plaintiff was deficient to be awarded the damages sought.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 535 (App. 2018).

Contracts  Specific Performance
Specific performance is a contract remedy that is available only when the usual measure of damages, expectancy, restitution, or reliance money damages are inadequate compensation, or cannot be computed, or when a substitute cannot be purchased.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 535 (App. 2018).

Contracts  Damages; Contracts  Specific Performance
When a money award for actual damages should suffice and the amount is capable of being ascertained, specific performance is, by implication, an unsuitable remedy.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 536 (App. 2018).

Contracts  Specific Performance
Specific performance, however, should only be granted where no adequate remedy at law exists.  Carlos Etscheit Soap Co. v. McVey, 21 FSM R. 525, 536 (App. 2018).

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	COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

This appeal stems from a November 10, 2014 Order issued by the FSM Supreme Court Trial Division following a trial to determine the issue of actual damages sustained by Appellant, the Carlos Etscheit Soap Company ("CESC"), as a result of a violation of its civil rights by Appellee, the Board of Trustees of the Pohnpei Public Land Trust ("Board").  The Board entered into a commercial lease with Erine McVey and Do It Best Hardware ("McVey") that conflicted with a preexisting valid lease for the same property with CESC.  On remand from the FSM Supreme Court Appellate Division, the trial court was tasked with determining the actual damages flowing from the underlying civil rights violation, as well as the viability of reinstating five months on the leasehold CESC had been deprived.  In short, the instant appeal reflects CESC’s claim of having been inadequately compensated by the court below.

	I.  Background

The underlying civil action (2005-007) involved a specific parcel of land located in Kolonia, Pohnpei: Lot No. 014-A-08.  This matter has a rather elongated history, having been the subject of numerous decisions at both the trial and appellate level.  The relevant commercial lot is owned by the Pohnpei State Public Lands Trust and a long-term lease with CESC was dutifully recorded in 1980, reflecting an expiration date of July 1, 2005.1

Notwithstanding the valid lease held by CESC on Parcel No. 014-A-08, the Board, on February 3, 2005, executed a lease of this lot to McVey.  On October 18, 2006, the trial court, in Carlos Etscheit Soap Co. v. McVey, 14 FSM R. 458, 462 (Pon. 2006), held that the Board was estopped from maintaining CESC had no interest or right to Parcel No. 014-A-08, in light of the valid lease in existence with CESC, which was entitled to notice, as well as an opportunity to be heard, with respect to the Board’s intention to put the lot up for public bid.  As such, a preliminary injunction sought by CESC was granted and the lease to McVey deemed invalid.

The case lie dormant for three years, until the trial court, in Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102 (Pon. 2010), held a hearing on a number of pending motions and determined inter alia, that since the McVey lease was invalid and the Board had failed to provide CESC with prior notice and an opportunity to be heard on the validity of the attempted lease to McVey, CESC prevailed on its civil rights claim against the Board.  The trial court additionally granted Judgment in favor of CESC against McVey and Do It Best Hardware on a trespass claim.

On appeal, the underlying case was then brought before the Appellate Court in P1-2010, which challenged inter alia, the propriety of the trial court’s decision which disallowed CESC the use of the subject Parcel for a time span commensurate with the five-month interval it had been deprived on its preexisting leasehold, as well as the factual determination rendered below, that CESC had not developed this plot of land.  The P1-2010 Appellate Court’s Opinion, directing the following issues be addressed on remand, are underscored by CESC in the instant matter:

Accordingly, we hold that the trial court cannot have foreclosed [CESC’s] right to a hearing on actual damages flowing from the civil rights violation, and we remand P1-2010 to the trial court for further determination as to actual damages.

[CESC] did not request the trial court to allow [it] use [of] the Parcel for the time period equivalent to that between the recordation of the McVey lease (February 3, 2005) and the expiration of [CESC’s] lease (July 1, 2005).  [CESC] asserts this is an issue of damages . . . [and] given our analysis regarding hearings on damages, supra, we agree that this is an issue of damages, to be resolved on remand to the trial court.2

Prior to the ensuing trial, the Board filed a motion to exclude evidence.  In a May 1, 2014 Order addressing this evidentiary issue, the trial court opined:

The court has previously ordered specific performance against the State of Pohnpei, Ponape Construction Co. v. Pohnpei, 6 FSM Intrm. 114, 126, 129 (Pon. 1993), aff’d, 7 FSM Intrm. 613 (App. 1996), when it allowed a Plaintiff to continue commercial dredging for the same amount of time it had been prevented by Pohnpei from dredging under a license it had been issued.  If specific performance were ordered here, the court would order [CESC] to be allowed to resume possession for five more months.  In Ponape Construction Co. v. Pohnpei, 6 FSM Intrm. 114 (Pon. 1993), aff’d, 7 FSM Intrm. 613 (App. 1996), the plaintiff’s resumed commercial dredging operation earned it further revenue.  It seems five months of resumed occupation by [CESC] would not affect [CESC’s] income.  Specific performance of the last five months of the lease therefore seems pointless.  A money award for actual damages should suffice.3

In the wake of a trial to resolve the issue of actual damages sustained by CESC as a result of the violation of its civil rights by the Board, a Findings of Fact and Conclusions of Law was entered.  The following excerpts from the trial court’s ruling are referenced by CESC, as particularly relevant to the present appeal:

The court cannot find that [CESC] was going to make these improvements on Lot. No.014-A-08 during the five-month period – February through June 2005.  [CESC] insists that if it is given five more months’ tenure of Lot No. 014-A-08, it can, within that time period, add landfill to Lot No. 014-A-08 to raise its elevation to equal that of the other four lots in [CESC’s] current development plan.

The court does not doubt that [CESC] could accomplish this feat within a five-month period if it had the opportunity and incentive to do so.  However, that is not a basis on which the court can find actual damages.  What [CESC] would need to show, and did not, was that it would have done so during the February through June 2005 time period.  Accordingly, the $159,000 that CESC says it expended on improving the other lots in its development plan cannot be awarded in damages.  And if, at the end of this case and Board proceeding, [CESC] does resume a leasehold on Lot. No. 014-A-08 and completes its development plan, that $159,000 expenditure will not be damages[,] but money well spent.

. . .

[CESC] asks that the court enforce specific performance of five months’ further tenure of Lot No. 014-A-08.  The court will not grant [CESC] this five months lease tenure unless, at the end of this case, [CESC] is granted a renewal lease of Lot No. 014-A-08, in which case the court will order five months added onto the term of Lot No. 014-A-08’s lease.4

In sum, CESC maintains it was not provided adequate relief below and the trial court failed to rule on the issue of specific performance; further noting this purported slight is compounded by the fact that the Board continued to award the relevant Parcel to McVey.  As a result, CESC claims it is being denied any relief to redress the Board’s civil rights violation and covets the remedy of specific performance, with an eye toward compelling the Board to restore the five-month period it was deprived.

	II.  Issues on Appeal

A.  Whether it was an erroneous conclusion of law and an abuse of discretion not to allow Appellants the use of Lot No. 014-A-08 through either law or equity, for a time period equal to the time period from February 3, 2005 to July 1, 2005, when the lot was improperly leased to Erine McVey, despite finding, as a finding of fact, that CESC could complete development in that period of time and that CESC’s civil rights were violated by the unlawful leasing of the lot.

B.  Whether the factual findings of the trial court were clearly erroneous.

C.  Whether the legal findings of the trial court were erroneous conclusions of law.

D.  Whether the findings of the trial court were an abuse of discretion.

E.  Whether the findings of the trial court were unjust and inequitable and an erroneous conclusion of law, in that the trial court determined the Board of Trustees had violated Appellant’s civil rights, yet awarded them inadequate damages, either equitably or legally, for the violation of its civil rights.

F.  Whether the trial court erred as a matter of law and abused its discretion, in determining and limiting actual damages to a standard that could not be met by Appellant to provide any meaningful relief.

It bears noting that the issues brought to the fore by CESC are inextricably intertwined and therefore Counsel for CESC concedes they are not broached individually, but concurrently, within the opening brief.

	III.  Standard of Review

CESC contends that there was, inter alia, an abuse of discretion on the part of the trial court.  An abuse of discretion occurs when 1) the court’s decision is clearly unreasonable, arbitrary or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court’s findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision.  Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657-58 (App. 2009).  Furthermore, such abuses must be unusual and exceptional; an appellate court will not merely substitute its judgment for that of the trial judge.  Simina v. Kimeou, 16 FSM R. 616, 619 (App. 2009).

It is incumbent upon the reviewing court to review the record as a whole and consider evidence detracting from, as well as supporting, the respective decision.  As such, this court will find an abuse of discretion only when there is a definite and firm conviction, upon weighing all the relevant factors, that the court below committed a clear error of judgment in the conclusion it reached.

Concerning the allegation leveled by CESC that the trial court erred in law/fact, "[a] trial court’s findings are presumptively correct."  George v. Albert, 17 FSM R. 25, 30 (App. 2010).

When trial court findings are alleged to be clearly erroneous, we can find reversible error only:  1) if the trial court findings were not supported by substantial evidence in the record; or 2) if the trial court’s factual finding was the result of an erroneous conception of the applicable law; or 3) if after reviewing the entire body of evidence and construing the evidence in the light most favorable to the appellee, we are left with a definite and firm conviction that a mistake has been made.

Id. at 30.  In order "[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old unrefrigerated dead fish."  Smith v. Nimea, 19 FSM R. 163, 173 (App. 2013) (citing Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F. 2d 228, 233 (7th Cir. 1988).

CESC additionally cites Worswick v. FSM Telecom. Corp., 9 FSM R. 460 (App. 2000), in support of the following proposition:

"[t]hese formulations of the standard of review, however, do not distinguish between the trial court’s findings of fact and the trial court’s (legal) conclusion[,] that the facts it found are sufficient or insufficient to meet the plaintiff’s burden of proof.  The question[,] whether the facts as found (or whether the facts as found which are not clearly erroneous) are sufficient evidence to meet the plaintiff’s burden of proof[,] is a question of law.  5 Am. Jur. 2d Appellate Review § 663 (1995).

Worswick, 9 FSM R. at 462.  Finally, issues of law are reviewed de novo on appeal.  Iriarte v. Individual Assurance Co., 18 FSM R. 340, 351 (App. 2012).

	IV.  Analysis

1)  Allegations Concerning Erroneous Findings of Fact

CESC cites to a couple of specific findings of fact by the court below; referring to these observations as "clearly erroneous" and claiming they adversely impacted the Judgment which was ultimately rendered.  The first such allegation revolves around the following recitation by the trial court:

[CESC] spent considerable sums filing in and raising the elevation of four other lots that stretch along the shoreline westward from Lot No. 014-A-08.  Between those lots and Lot No. 014-A-08 lies a long jetty extending into the lagoon.  [CESC] also has a leasehold on the jetty.  [CESC] currently has a development plan for a boat repair and boat motor business.  [CESC] asserts that Lot No. 014-A-08 is integral to, if not the key or indispensable part of its development of the other four lots[,] because the boat motor business it envisions requires there be land in the lee of its leasehold jetty lot to allow boats to be hauled out of the water on a boat ramp where they would be protected from the prevailing wind and the waves the wind could generate.  The court is not convinced that [CESC’s] development project is as dependent on Lot No. 014-A-08 as [CESC] insists.  From the site visit, Lot No. 014-A-08 does not appear to extend all the way to the waterline.5

CESC takes issue with the trial court’s above-mentioned characterization by referencing maps of the subject area6 that showed Lot No. 014-A-08 was surrounded by water on both sides.  Accordingly, CESC maintains: "[t]his finding by the trial court is clearly erroneous and affects the Judgment[,] since it was integral to a review of Appellant’s development plans."

This assertion by CESC however, neglects to take into consideration the two paragraphs that immediately follow the cited narrative of the trial court, to wit:

The court cannot find that [CESC] was going to make these improvements on Lot No. 014-A-08 during that five-month period – February through June 2005.  [CESC] insists that if given five more months’ tenure of Lot No. 014-A-08, it can, within that time period, add landfill to Lot No. 014-A-08[,] to raise its elevation to equal that of the other four lots in [CESC’s] current development plans.

The court does not doubt that [CESC] could accomplish this feat within a five-month period if it had the opportunity and incentive to do so.  However, that is not a basis on which the court can find actual damages.  What [CESC] would need to show and did not, was that it would have done so during the February through June 2005 time period."7

The purportedly erroneous reference by the trial court, with respect to the accuracy of the specific boundary lines of Lot. No. 014-A-08 vis a vis the jetty, can be safely ameliorated as harmless error, against the backdrop of an overarching concern with an inadequate proffer of evidence, as clearly indicated by the court below.  The focal point of the trial court’s finding of fact in this regard primarily addressed the failure of CESC to meet its burden of proof, that it would have developed this lot during the divested five-month period of its respective lease (e.g. the projected expenditure of monies toward that end) which would constitute actual damages.  In other words, the impact of this ostensibly inaccurate reference (to the lines of demarcation concerning Lot No. 014-A-08, in relation to the jetty) was negligible, in terms of its affect on the conclusion reached by the trial court regarding insufficient evidence and as such (contrary to CESC’s assertion), hardly "integral to a review of Appellant’s development plans."

In George v. George, 15 FSM R. 270 (Kos. S. Ct. Tr. 2007), the court found the evidence offered to support an amount claimed in the underlying complaint to be minimal and noted:  "the parties have the responsibility to put forward the evidence to support their client’s case."  Id. at 275.  The reasoning of the court below similarly emphasized the deficiency of evidence proffered by CESC, with respect to the development plan’s purported inclusion of these improvements (e.g. adding landfill to raise the elevation of the relevant lot) during the five-month time period at issue.

The introduction of evidence to reflect that prefatory measures had been initiated (along with their attendant cost), with an eye toward following through on its development plan circa February –July 1, 2005, would have bolstered CESC’s actual damages claim.  In fact, a key witness for CESC was asked to itemize the actual concomitant expenses, in terms of a specific aspect of this development (i.e. plan to raise the elevation level of Lot No. 014-A-08, by adding backfill), in relation to an aggregate "Fill Expenses" spreadsheet introduced by CESC, but was incapable of affixing any dollar amount to such endeavor.

Without such evidence, the trial court was essentially left with an unsubstantiated affirmation, to wit:  that CESC intended to develop the subject lot during the five-month time frame it was deprived.  "Evidence must be in the nature of facts – not conclusions [or] unsupported allegations of counsel . . . ."  College of Micronesia – FSM v. Rosario, 10 FSM R. 175, 186 (Pon. 2001).  Furthermore, an argument contained in a brief does not constitute evidence.  In re Attorney Disciplinary Proceeding, 9 FSM R. 165, 172 (App. 1999).

The remaining argument advanced by CESC, which takes issue with the underlying findings of fact, submits that it was literally impossible to have followed through with the planned development of Lot No. 014-A-08 and notes the absence of any reference to this impossibility by the trial court.  Stated somewhat differently, CESC cites to the improperly issued lease to McVey on February 8, 2005 and the fact that this new leaseholder immediately took possession of the lot, coupled with an injunction that was in place; effectively thwarting any development by either of these parties.  In short, CESC maintains this "second finding should have been made, but was not included in the trial court opinion."

The court below found the evidence proffered by CESC insufficient, in terms of depicting its intention to make improvements to Lot No. 014-A-08 during the February through June 2005 time span.  CESC avers that the trial court was placing an insurmountable burden on it, as far as demonstrating its intention to commence development of this lot, since it would have required violating the terms/conditions of the injunction.  The trial court, however, was not intimating that CESC should have undertaken the envisioned development, but instead, commenting on the paucity of evidence before it (e.g. prefatory steps and/or money expended in pursuit thereof) to reflect such imminent measures were part of the overall development plan.

At the expense of repetition, although CESC was incapable of developing Lot No. 014-A-08 during the five-month interval in which it was displaced, since McVey took possession of same and an injunction was in place, this hardly prevented CESC from introducing sufficient evidence to demonstrate the envisioned improvements that would have been undertaken on this parcel, pursuant to its development plan (as well as the associated costs).  As a result, this particular argument can be discounted summarily, since the test to be utilized in determining the adequacy of findings and a fortiori, sufficiency of evidence, is whether they are comprehensive and pertinent to the issue at hand, in terms of formulating a sound basis for the decision.

"The trial court need not state why it did not consider an issue or facts[;] it need only make a finding of such essential facts as provide a basis for the decision."  Simina v. Kimeuo, 16 FSM R. 616, 622 (App. 2009).  Accordingly, neither of CESC’s aforementioned challenges, concerning allegedly erroneous findings below, warrant disturbing the decision reached by the trial court.

2)  Allegation of Inadequate Relief

Notwithstanding a finding that a civil rights violation occurred, CESC claims the trial court abused its discretion, to the extent there was a failure to provide "substantive" relief.  Without restoring the improperly deprived five months on its leasehold, CESC avers that the potential for renewing the subject lease (i.e. as a leaseholder in possession) is significantly marginalized.

Although not broached by any of the parties, this court notes that the particular lease held by CESC (dated July 1, 1980) indicated the lot would be used for a "Wholesale and Retail Store" and construction was to commence within "90" days8.  This lease further provided:  "As a material part of the consideration of this Lease Agreement: (2) The Lessee covenants and agrees that within the construction period specified in Item 7, the Lessee shall have completed construction of a facility for the business enterprise specified in Item 2 . . . ."9

Against the backdrop of these provisions, when the Board executed the competing lease to the relevant lot with McVey (February 3, 2005), CESC had been a lessee in possession since 1980 and notwithstanding development on its four contiguous lots, development of Lot No. 014-A-08 was not undertaken.  As noted by the Appellate Court in Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 438 (App. 2011): in its own motion, CESC conceded that "no action had been taken on the Parcel."

Under this factual scenario, the doctrine of equitable estoppel may also be triggered.  In that, Lot No. 014-A-08 lie undeveloped for an inordinate length of time and separate and apart from the fact that this violated the aforementioned material term of the Lease Agreement, this inertia on the part of CESC could lead the Board to reasonably conclude that this lot would remain stagnant and a fortiori, undeveloped.10  This dormancy, however, did not relieve the Board from providing notice and an opportunity to be heard with regard to the improperly executed McVey lease.  Nevertheless, the directive from the Appellate Court, remanding this matter to the trial court below, narrowly framed the issue to be addressed:  "for further hearings on the matter of actual damages in the civil rights claim."  Carlos Etscheit Soap Co., 17 FSM R. at 441.

The insufficient evidence adduced by CESC, as far as demonstrating actual damages that flowed from its effective ouster of its lease for the subject five-month period, appeared to have focused on the sum of money expended on developing the surrounding lots as opposed to Lot No. 014-A-08.  In this vein, McVey argues: "[i]t seems to be that [CESC] is demanding specific performance as relief[,] simply because the trial court did not award it the damages it was seeking, $159,000.  This amount is clearly not what [CESC] would have suffered as a result of the [civil rights] violation.  This was the amount it spent on developing the surrounding lots, not Lot No. 014-A-08.  The mandate of the Appellate Court was very clear, to determine actual damages flowing from the civil rights violation for Lot No. 014-A-08."

Actual damages are "intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct."  State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513, 1519, 155 L. Ed. 2d 585, 600 (2003).  Implicit within this language is that a monetary award is envisioned to compensate for actual losses which can be readily proved and the commensurate amount is to be based on the proven harm, loss or injury suffered by CESC.  At the expense of repetition, the court below opined that it was "not convinced that [CESC’s] development project is as dependent on Lot No. 014-A-08, as [CESC] insists. . . . What [CESC] would need to show and did not, was that it would have [undertaken the development of this lot] during the February through June 2005 time period."11  As such, the trial court explicitly acknowledged that the evidence proffered by CESC was deficient.

3)  Specific Performance

Specific Performance was additionally sought by CESC, in the form of having the Board restore the last five months of the leasehold it was deprived.  McVey argues that CESC’s pursuit of the instant matter (in terms, of seeking restoration of the five-month lease period) constitutes harassment; noting it is a direct competitor to one of [CESC’s] companies and by inference, the underlying motivation for continuing this litigation is suspect.  The trial court denied such relief, having found it "pointless," since it would not affect CESC’s income and"a money award for actual damages should suffice."12

"Specific performance is a contract remedy that is available only when the usual measure of damages, expectancy, restitution, or reliance money damages are inadequate compensation or cannot be computed or when a substitute cannot be purchased."  FSM v. GMP Hawaii, Inc., 16 FSM R. 601, 606 (Pon. 2009).

Although testimony was elicited below to support an arguable predilection on the part of the Board to favorably consider renewing a lease when development of a parcel had been undertaken by a lessee in possession, such development would not definitively ensure an approval, as far as a renewal of the lease once a coveted restoration of the five-month term came to an end.  In other words, it had previously been determined, that "[t]he [CESC] lease agreement did not have a provision entitling the lessee to an automatic renewal."  Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 102, 111 (Pon. 2010).  In accord, the Appellate Court commented: "[i]n remanding, we also note that the trial court has already denied [CESC’s] request for right of first refusal or a right of renewal to the Parcel, ruling that [CESC’s] lease did not contain a provision entitling the lease agreement to an automatic right of renewal."  Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 438 (App. 2011).

The court’s decision below, which observed specific performance to be "pointless" seemingly recognized that such a remedy would also be impractical, as nine years (from the improper lease of the subject lot to McVey) had elapsed and the lot in question was not generating any income.13

Notwithstanding the injunction in place in the present matter, thereby precluding development of the lot at issue, as noted by the trial court, this property was not generating any revenue for CESC.  Finding "a money award for actual damages should suffice," by implication, the court below determined that specific performance was an unsuitable remedy, as a monetary amount was capable of being ascertained.  GMP Hawaii, Inc., 16 FSM R. at 606.

Ostensibly dissatisfied with the money damages it had been awarded, the remedy of specific performance was sought by CESC.  Specific performance, however, should only be granted where no adequate remedy at law exists.  As noted above, the money award was deemed to have been sufficient by the trial court.  Accordingly, the trial court’s determination, that specific performance was unwarranted, did not constitute an abuse of discretion.

	V.  Conclusion

The reasoning employed by the trial court in rendering the underlying decision took into account the testimony adduced from all witnesses, as well as the exhibits, and therefore, both the Findings of Fact and Conclusions of Law were properly substantiated.  The seemingly erroneous reference (within the Findings of Fact) to the boundary lines of the subject lot in relation to a jetty was de minimus, given the overarching concern on the part of the trial court with the insufficient evidence proffered by CESC to reflect a measure of damages that resulted from the Board having deprived it of the five-month balance of its leasehold.  CESC’s coveted restoration of such lease period, urging an adoption of the remedy of specific performance, was properly deemed impractical and unwarranted, given the previous award of money damages.  The additional assignment of error, in terms of the trial court having purportedly required a burden of proof which would have been virtually impossible to satisfy, is misguided, since it constitutes a mischaracterization of what was actually sought.  In that, the trial court simply needed sufficient evidence reflecting the actual damages suffered as a result of a premature termination of CESC’s unexpired lease.  In sum, CESC fell short in this regard and in light of the prior award of monetary damages, coupled with the impropriety of the request for specific performance, the decision of the trial court will not be disturbed.

Accordingly, the November 10, 2014 Decision of the FSM Supreme Court, Trial Division, is hereby affirmed.

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