FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. K8-2015
(Consolidated with K10-2015)
(Civil Action No. 2013-2004)

SASAKI L. GEORGE,
Appellant,

vs.

CANNEY PALSIS, individually and in his capacity
as Directing Attorney for Kosrae MLSC, LEE
PLISCOU, in his capacity as the Executive
Director of MLSC, and MICRONESIAN LEGAL
SERVICES CORPORATION;
Appellees.
_____________________________________________

OPINION

Argued:  April 30, 2018
Decided:  January 30, 2019

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Mayceleen JD Anson, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellant:	Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

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

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HEADNOTES

Appellate Review - Standard - Civil Cases - Factual Findings
To the extent an appellant contests the trial court’s findings of fact as clearly erroneous, an appellate court can only find reversible error when 1) the trial court findings were not supported by substantial evidence in the record; 2) the factual findings were the result of erroneous conception of the applicable law; or 3) 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.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Appellate Review - Standard - Civil Cases - Factual Findings
An appellate court cannot hold the trial court’s findings as clearly erroneous when the decision was the result of weighing conflicting evidence.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Evidence - Burden of Proof
Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion, and it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Appellate Review - Standard - Civil Cases - Factual Findings
An appellate court does not decide factual issues de novo.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Appellate Review - Standard - Civil Cases - Factual Findings
A trial court’s findings are presumptively correct.  Thus, in order for a factual finding to be clearly erroneous, the 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.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Appellate Review - Standard - Civil Cases - Abuse of Discretion; Appellate Review - Standard - Civil Cases - Factual Findings
Once the facts are found, that are not determined to be clearly erroneous, the question becomes whether those facts were sufficient evidence to meet the burden of proof, which is a question of law measured by the abuse of discretion standard.  George v. Palsis, 22 FSM R. 165, 171 (App. 2019).

Appellate Review - Standard - Civil Cases
When an appellant has failed to present arguments in support of two issues that he presented on appeal, it would be improper for the appellate court to address those unsubstantiated issues.  The appellate court will conclude that the appellant has waived those two issues.  George v. Palsis, 22 FSM R. 165, 172 (App. 2019).

Civil Procedure - Dismissal - After Plaintiff’s Evidence; Civil Procedure - Motions
Because, absent compelling reasons to the contrary, form must ever be subservient to substance and a thing is what it is regardless of what a party chooses to call it, counsel’s labeling of its filing as a motion for directed verdict and the trial court’s interpretation of that motion as a motion for dismissal at the close of plaintiff’s case under Rule 41(b) does not constitute an error by the trial court.  George v. Palsis, 22 FSM R. 165, 173 (App. 2019).

Civil Procedure - Dismissal - After Plaintiff’s Evidence
Rule 41(b)’s language and context permits a defendant to move for judgment as a matter of law after the plaintiff has completed his case in chief.  George v. Palsis, 22 FSM R. 165, 173 (App. 2019).

Civil Procedure - Dismissal - After Plaintiff’s Evidence
A defendant may use a Rule 41(b) motion to seek a dismissal when the plaintiff has shown no right to relief because a defendant may, after the plaintiff has finished the presentation of his evidence, move for judgment as a matter of law.  George v. Palsis, 22 FSM R. 165, 173 (App. 2019).

Civil Procedure - Dismissal - After Plaintiff’s Evidence; Evidence - Burden of Proof
A plaintiff has the burden to persuade the court with competent evidence about the amount of damages.  Reasonably calculated damages must be shown as part of a prima facie case.  George v. Palsis, 22 FSM R. 165, 174 (App. 2019).

Civil Procedure - Dismissal - After Plaintiff’s Evidence; Evidence - Burden of Proof
When a plaintiff fails to offer evidence of calculated damages at trial, the trial court may use its discretion to strike a document listing damages that was submitted after trial, and, in striking that submitted documentation, the trial court does not abuse its discretion because the opposing party cannot properly examine or counter evidence offered after trial.  George v. Palsis, 22 FSM R. 165, 174 (App. 2019).

Evidence - Burden of Proof
The burden to demonstrate good cause why evidence offered after trial should be admitted is on the party offering the evidence.  George v. Palsis, 22 FSM R. 165, 174 (App. 2019).

Constitutional Law - Due Process
The constitutional guarantee of due process was established to protect persons from governmental actions and not private persons or entities not acting under the law.  Micronesian Legal Services Corporation is not a governmental entity created by the national, state, or local government.  George v. Palsis, 22 FSM R. 165, 175 (App. 2019).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

This is a consolidated appeal filed from a FSM Supreme Court Trial Division order granting directed verdict, entered July 28, 2015. [George v. Palsis, 20 FSM R. 111 (Kos. 2015)] The Notice of Appeal in Appeal Case No. K8-2015 was filed August 31, 2015 and the Notice of Appeal in K10-2015 was filed October 16, 2015.  The underlying causes of action in K8-2015 involve a complaint alleging wrongful termination brought by Appellant Sasaki George (hereinafter "George") against Appellees Canney Palsis (hereinafter "Palsis"), individually and in his capacity as Directing Attorney for Kosrae Micronesian Legal Services Corporation (hereinafter "MLSC"), Lee Pliscou, in his capacity as the Executive Director of MLSC, and MLSC, filed December 23, 2013.  K10-2015 is an appeal from the trial court’s order denying George’s motion for a new trial [George v. Palsis, 20 FSM R. 174 (Kos. 2015)] and order taxing costs.

After George rested his case, Palsis orally moved for a directed verdict pursuant to FSM Civil Rule 41(b) on May 21, 2015 and submitted the motion in writing the next day, May 22, 2015.  George filed an opposition thereto on June 1, 2015.  As stated above, the trial court entered an order granting Palsis’ Motion for Dismissal at the Close of Plaintiff’s Case on July 28, 2015, which is the subject of App. Case No. K8-2015 Appellant’s App., Ex. H at 97; Appellee’s App., Ex. 13. On August 13, 2015, George filed a Motion for New Trial Date, which was denied by the court on September 23, 2015, which is the subject of App. Case No. K10-2015.

George was represented by attorney Yoslyn G. Sigrah, Esq.  Canney Palsis, individually and in his capacity as the Directing Attorney for Kosrae MLSC, Lee Pliscou, in his capacity as the Executive Director of MLSC, and MLSC were represented by attorney Stephen V. Finnen, Esq.

We affirm the trial court’s July 28, 2015 order granting a FSM Civil Rule 41(b) motion for directed verdict filed by Defendants-Appellees at the close of Plaintiff-Appellant George’s evidence and we affirm the trial court’s September 23, 2015 order denying a Motion for New Trial Date.  Our reasons follow.

I.  Background

George began working at MLSC as a trial counselor in May of 1996 and continued his employment with them as a staff attorney beginning in April of 2000.

On March 13, 2013, MLSC delivered a "Proposed Action for Termination" letter, Appellants App. K, authored by Canney Palsis who, as then Directing Attorney for Kosrae’s MLSC office, was George’s direct supervisor.  The letter references a series of incidents where George failed to perform certain assignments to which he was ordered to undertake.  MLSC alleged (1) that George failed to participate in MLSC’s annual performance review report for 2013 of which he was assigned to interview community members to elicit input regarding how MLSC should focus its legal services, and (2) that George did not comply with his superior’s order to file a certain petition in a particular probate matter.  Palsis also testified at trial that there were several other reasons that led to his decision to terminate George.  Appellee’s App. 17 at 509.

In Palsis’s proposed termination letter, he informed George that he was entitled to respond to the proposed termination within two (2) days pursuant to MLSC’s termination procedures, as set forth in its Personnel Manual.  Appellant’s App. M at A(3)(d)(2).  George failed to timely submit his response thereto, but did eventually submit a reply on March 26, 2013.  Appellant’s App. L; Appellee’s App. 17 at 556-57.

MLSC’s Executive Director then made a decision pursuant to Section A(3)(d)(3) of its personnel manual to confirm George’s termination.  In his letter confirming George’s proposed termination, MLSC’s Executive Director Lee Pliscou stated the following:

1.  George’s response to the proposed termination letter was not timely;
2.  George failed, without good cause, to comply with a proper request from his supervisor, Palsis, to assist in the preparation of the office’s annual priorities report;
3.  George failed to follow his supervisor’s instructions regarding the handling of App. Case No. K12-184;
4.  George’s actions amounted to failure to discharge his duties in a prompt and efficient manner, which were grounds for termination;
5.  George’s actions amounted to insubordination, which were grounds for termination; and
6.  The effective date of George’s termination of employment with MLSC was April 5, 2013.

Appellant’s App. J. at 116.

Pursuant to Section A(3)(d)(7) of MLSC’s Personnel Manual, George appealed his termination to MLSC’s Board Executive Committee.  On April 4, 2013, George submitted a letter to the Board Executive Committee setting forth his reasoning for why his termination was not justified.  Appellee’s App. 23 at 623-24.  Then, on June 27, 2013, George submitted a letter to Robert Ruecho, the President of MLSC’s Board of Trustees, further setting forth reasons why his termination was not justified.

On July 18, 2013, the MLSC Interim Executive Committee affirmed George’s termination of employment.  The Committee concluded that "Mr. George demonstrated a pattern of noncooperation that warrants termination."  Appellee’s App., Ex. 2 at 14.

George then filed suit in the FSM Supreme Court trial division.  After disposing of several pretrial motions and three (3) days of trial after which George rested his case-in-chief, the trial court granted the Appellees-Defendants’ Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case, entered July 28, 2015, and made the following factual findings, which can only be overturned if clearly erroneous, see discussion, pt. III infra:

The MLSC Personnel Manual ("Manual") served as George’s employment contract while he was employed at MLSC.  The Manual provided that "[e]mployees may be warned, suspended or terminated for just cause, which includes but is not limited to the following:  failure to discharge duties in a prompt and efficient manner . . . [and] failure to discharge the responsibilities and adhere to the standards set forth in one’s job description."  Manual pt. A(3)(a).

Each MLSC office prepares for submission to the MLSC central office on Saipan an annual priorities report about which types of cases MLSC should be handling.  The report, which is the Directing Attorney Canney Palsis’s ultimate responsibility, involves, among other things, soliciting the views of the community and determining what sort of cases MLSC should be handling.  To assist in the report’s preparation, input is sought by interviewing various elected officials.  At a Kosrae MLSC staff meeting in mid-November 2012, at which George was present, the responsibility for doing these interviews was divided between Directing Attorney Palsis, staff attorney George, and staff trial counselor Charlton Timothy.  The deadline for completing these interviews was January 4, 2013.

George had not done any of these interviews when a month and a half later on January 2, 2013, he took sick leave, approved by Palsis.  George never did any of the interviews he was assigned.  Assisting in the annual priorities determination process is part of an MLSC staff attorney’s job description.  George had previously been disciplined by being put on probation in 2012 for, among other things, "failure to participate appropriately in the annual priorities review."  Defs.’ Ex. 28.

Whether the Directing Attorney managed to conduct all of the interviews assigned to himself is irrelevant as to whether George conducted any of his assigned interviews.  Also not particularly relevant is George’s contention that the priorities discussed in the annual reports showed little or no change over the years.  This is because it was only by doing the interviews MLSC could determine if the community’s needs or its sentiment about what priorities MLSC should pursue had changed or not.

On April 21, 2012, MLSC received $10 from a client to cover the fee for filing a probate case in Kosrae State Court because the client was leaving the jurisdiction soon and wanted the case filed before she left.  The client was given a receipt for the money.  The money was physically received either by George or by the office secretary, each later insisting that it was the other who had actually received the $10.  The $10 could not be located.  George wrote a memo to the secretary on February 6, 2013 about the issue.  On February 8, 2013, after meeting with George and the secretary, Palsis resolved the issue by requiring each to provide $5 so the client’s probate case could be finally be filed, and instructed George that, since the papers had been prepared, to file the probate case no later than February 20, 2013, and, immediately after filing it, to provide Palsis with a filed copy of the probate petition.  Defs.’ Ex. 2 Attach.  George did file the probate petition by February 20, 2013, but did not provide Palsis with a copy.  When Palsis asked him for a copy, George verbally assured him that the petition had been filed but did not give him a copy.  This was insubordination.

When he was terminated, George had around twice the caseload (about 130 cases) of each of the other two practitioners (about 60 cases each) in the Kosrae MLSC office.  This was not because he had been assigned more cases than anyone else.  The cases were divided up equally between the three legal practitioners in the office.  It was because George was slow in bringing the cases assigned to him to a resolution.  After George was terminated, his pending cases were divided between the Kosrae MLSC office’s Directing Attorney and its trial counselor.  Each of their caseloads were thus increased substantially.  Nonetheless, they were able to reasonably manage their new caseload and conclude many of the cases.  Trial counselor Timothy’s current caseload is about 70 cases.

There was no evidence introduced from which the court could draw an inference that MLSC had terminated George because he had converted to the Church of the Latter Day Saints (Mormon).

After his termination, George handled, in private practice, some cases for clients.  No evidence was introduced about the amount he was paid for his services.  In January 2015, George became an elected member of the Kosrae Legislature.  If he had still been employed by MLSC he would have had to terminate his position there because MLSC policy barred employees from holding political office.

[George v. Palsis, 20 FSM R. 111, 115-16 (Kos. 2015).]

Based on these findings of fact, the trial court held the following:

[T]he court concludes that George failed to discharge his MLSC duties in a prompt and efficient manner, and he was insubordinate.  The failure to discharge one’s duties in a prompt and efficient manner constitutes just cause for termination from MLSC.  Manual pt. A(3)(a).  Insubordination is also just cause. . . .

Sasaki George had the burden to prove by a preponderance of the evidence that MLSC’s termination of his employment was not for just cause.  He failed to do so.  George has not shown upon the facts and the law a right to relief.  The defendants’ motion to dismiss will therefore be granted.

George, 20 FSM R. at 116.

George timely appealed the trial court’s decision.

II.  Issues Presented

1)  Whether the trial court’s Order Granting Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case and Judgment thereon, entered July 28, 2015, were clearly erroneous, contrary to law, and not based on substantial evidence; whether George presented his case-in-chief by a preponderance of the evidence;

2)  Whether the court Order Denying New Trial Date, filed September 23, 2015, and Order Taxing Costs, filed September 17, 2015, were erroneous, contrary to law, and not based on substantial evidence;

3)  Whether the court’s Order of July 28, 2015 violated George’s constitutional due process rights based on the notice requirements;

4)  Whether the court decisions denying George’s right to receive payout of his accrued annual leave hours and unauthorized withholding of earned properties by the Appellees were erroneous, contrary to law, and not based on substantial evidence.

III.  Standard of Review

To the extent George contests the trial court’s findings of fact as clearly erroneous, we can only find reversible error when (1) the trial court findings were not supported by substantial evidence in the record; (2) the factual findings were the result of erroneous conception of the applicable law; or (3) 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.  George v. Albert 17 FSM R. 25, 30 (App. 2010); Ponape Island Transp. Co. v. Fonoton Municipality, 13 FSM R. 510, 513 (App. 2005); Kosrae Island Credit Union v. Palik, 10 FSM R. 134, 136 (App. 2001); Opet v. Mobil Oil Micronesia, Inc., 3 FSM R. 159, 165 (App. 1987) (standard of review on appeal on the issue of sufficiency of the evidence is very limited - only findings that are clearly erroneous can be set aside); Peter v. Jessy, 17 FSM R. 163, 170-71 (Chk. S. Ct. App. 2010).

An appellate court cannot hold the trial court’s findings as clearly erroneous when the decision was the result of weighing conflicting evidence.  Worswick v. FSM Teleomm. Corp., 9 FSM R. 460, 464 (App. 2000).  Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion, and it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.  Palsis v. Kosrae, 17 FSM R. 236, 243 (App. 2010).  An appellate court does not decide factual issues de novo.  Iriarte v. Individual Assurance Company, 18 FSM R. 340, 362 (App. 2012) (citing In re Sanctions of George, 17 FSM R. 613, 616 (App. 2011)).  A trial court’s findings are presumptively correct.  Id.  Thus, in order for a factual finding to be clearly erroneous, the 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.  Smith v. Nimea, 19 FSM R. 163, 173 (App. 2013).

Once the facts are found, which are not determined to be clearly erroneous, the question becomes whether those facts were sufficient evidence to meet the burden of proof, which is a question of law measured by the abuse of discretion standard.  Worswick, 9 FSM R. at 462.

	IV.  Analysis

i)  Issues Two (2) and Four (4)

At the outset, we note that neither in his brief nor during oral arguments did George marshal any assertion in support of issues two (2)1 and four (4).2

Rule 28(a) of the FSM Rules of Appellate Procedure reads:

(a)  BRIEF OF THE APPELLANT.  The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1)  A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2)  A statement of the issues presented for review.

(3)  A statement of the case.  The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below.  There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).

(4)  An argument.  The argument may be preceded by a summary.  The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.

(5)  A short conclusion stating the precise relief sought.

(6)  The addendum referred to in Rule 28(f), if required.

FSM App. R. 28 (emphasis added).

Given George’s failure to present arguments in support of issues two (2) and four (4), it would be improper for us to address these unsubstantiated issues.  See McCaffrey v. FSM Supreme Court, 6 FSM R. 279, 283 (App. 1993) (FSM Appellate Rule 28(a) requires, among other things, that arguments in an appellant’s brief be supported by citations to authority; failure to provide such support will be deemed a waiver by appellant of those enumerated issues presented on appeal.).  We find that appellant has waived issues two and four that have been presented on appeal.

ii)	Issue 1:  Whether the trial court’s Order Granting Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case and Judgment thereon, entered July 28, 2015, were clearly erroneous, contrary to law, and not based on substantial evidence; whether George presented his case-in-chief by a preponderance of the evidence.

On May 21, 2015, once George had rested his case in chief, Palsis orally moved for a directed verdict.  On May 22, 2015, MLSC filed a written Motion for Directed Verdict.  George filed an opposition thereto on June 1, 2015 followed by MLSC’s reply thereto filed June 8, 2015.  George takes issue with the trial court’s Order Granting Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case entered on July 28, 2015.

Rule 41(b) of the FSM Rules of Civil Procedure reads:

(b)  Involuntary Dismissal; Effect Thereof.  For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.  After the plaintiff has completed the presentation of plaintiff’s evidence, the defendant, without waiving defendant’s right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.  The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.  If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided by Rule 52(a).  Unless the court in its order of dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

First, George contends that the trial court erred by having "renamed Defendants-Appellant’s Motion [for Directed Verdict], by the title ‘Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case.’"  Appellant’s Br. at 30.  This argument must fail.  Absent compelling reasons to the contrary, form must ever be subservient to substance.  A thing is what it is regardless of what a party chooses to call it.  Mori v. Hasiguchi, 18 FSM R. 83, 84 (App. 2011); Berman v. Pohnpei Legislature, 17 FSM R. 339, 352 n.5 (App. 2011); McIlrath v. Amaraich, 11 FSM R. 502, 508 (App. 2003).  Accordingly, MLSC’s labeling of its filing as a Motion for Directed Verdict and the trial court’s interpretation of that motion as a motion for dismissal at the close of plaintiff’s case pursuant to FSM Civil Rule 41(b) does not constitute an error by the trial court.

Second, George argues that a "Rule 41(b) involuntary dismissal motion has no room in a trial on the merits [of a] case."  Appellant’s Br. at 30.  He contends that a "Rule 41(b) dismissal should remain as [an] involuntary dismissal on traditionally known grounds such as lack of jurisdiction, improper venue or failure to join a party [and therefore] does not apply to George v. Palsis here."  Id.  In essence, he argues that, although the drafters of FSM Civil Rule 41(b) deliberately inserted language taken from Rule 50 of the U.S. Rules of Civil Procedure, the three sentences allowing for a directed verdict/finding in Rule 41(b) of the FSM Rules of Civil Procedure should be essentially ignored because they are not provided for in a separate rule similar to the U.S. Rules of Civil Procedure.

However, despite the differences in formatting from Rule 50 of the U.S. Rules of Civil Procedure, it is clear to us that the language and context of Rule 41(b) of the FSM Rules of Civil Procedure permits a defendant to move for judgment as a matter of law after the plaintiff has completed his case in chief.  FSM Civ. R. 41(b) ("After the plaintiff has completed the presentation of plaintiff’s evidence, the defendant, without waiving defendant’s right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.  The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.") (emphasis added); Chuuk v. Actouka Executive Ins. Underwriters, 18 FSM R. 111, 117 (App. 2011) ("Rule 41(b) permits a motion to dismiss - a motion for a judgment that upon the facts and the law, the Plaintiff has shown no right to relief - to be made after the close of the Plaintiff’s evidence and before the Defendant’s evidence"); see also People of Gilman ex rel. Tamagken v. Woodman Easternline Sdn. Bhd., 17 FSM R. 247, 250 (Yap 2010) ("Rule 41(b) permits a defendant to move for judgment as a matter of law after the plaintiff has completed the presentation on plaintiff’s evidence."); accord Nakamura v. FSM Telecomm. Corp., 17 FSM R. 45, 46 (Chk 2010); Roosevelt v. Truk Island Developers, 17 FSM R. 207, 210 (Chk. 2010); Ehsa v. Kinkatsukyo, 16 FSM R. 450, 453 (Pon. 2009); Actouka Executive Ins. Underwriters v. Simina, 15 FSM R. 642, 656 (Pon. 2008); Hauk v. Lokopwe, 14 FSM R. 61, 64 (Chk. 2006).  Therefore, George’s second main contention is meritless.

Third, George argues that the case law cited by the trial court in its July 18, 2015 Order Granting Rule 41(b) Motion for Dismissal at the Close of Plaintiff’s Case is distinguishable from the facts of this matter and therefore inapplicable.  His argument is that the cases the trial court cited does not involve an employment matter, thus making this case a matter of first impression.  Appellant’s Br. at 35.  However, a review of the trial court Order clearly reveals that the court was citing authority to support the fact that a Rule 41(b) motion is a way a defendant may move for dismissal when the plaintiff has shown no right to relief.  Appellee’s Appendix at 228-29.

George then questions how a trial court could weigh the evidence against one party when the other party has yet to begin their case in chief.  Again, under Rule 41(b) of the FSM Rules of Civil Procedure, Palsis had the ability, after George had completed the presentation of his evidence, to move for judgment as a matter of law.  See People of Gilman, 17 FSM R. at 49.  As a result, Palsis properly moved for judgment as a matter of law after George had completed his case in chief and the trial court properly ruled on that motion.  See Nakamura, 17 FSM R. at 46.

Last, George argues that his damages were established at trial because the evidence showed that he was injured when he was terminated from MLSC.  Appellant’s Br. at 48-50.  However, the panel’s review shows that George failed to present any evidence as to the amount of damages at trial.

As the trial court correctly stated, a plaintiff has the burden to persuade the Court with competent evidence as to the amount of damages.  Hauk, 14 FSM R. at 65.  Reasonably calculated damages must be shown as part of a prima facie case.  Id.  The trial court held that George failed to do so.

Based on the record before us, we agree with the trial court’s findings.  Although George attempted to introduce documentation in his June 1, 2015 Opposition to Defendants’ Motion for Directed Verdict alleging specific damages, there was neither testimony at trial supporting damages nor was this claim for damages introduced as an exhibit at trial.  As a result of George’s failure to offer evidence of calculated damages at trial, the trial court used its discretion to strike the document submitted after trial.  See Pacific Skylite Hotel v. Penta Ocean, 19 FSM R. 265, 269 (Pon. 2014) (trial court has discretion whether to admit additional evidence after trial).  In striking the submitted documentation, the trial court did not abuse its discretion because the opposing party cannot properly examine or counter evidence offered after trial.  Livaie v. Weilbacher, 13 FSM R. 139, 144 (App. 2005); Pacific Skylite Hotel, 19 FSM R. at 269.  The burden to demonstrate good cause why the evidence offered after trial should be admitted is on the party offering the evidence.  Pacific Skylite Hotel, 19 FSM R. at 269.  Here, George proffered no reasoning as to why his post-trial evidence should be admitted.  Thus, we cannot say that the trial court committed reversible error.

iii)  Issue 3: Whether the court’s Order of July 28, 2015 violated George’s constitutional due process rights

George contends that a trial court cannot rule on an employment dispute for termination based on insubordination when the defendant has yet to put on their case in chief proving insubordination.  Appellant’s Br. at 46.  This is essentially the same argument offered to contest the trial court’s order granting Palsis’s Rule 41(b) motion.

Moreover, as the trial court correctly stated, the constitutional guarantee of due process was established to protect persons from governmental actions and not private persons or entities not acting under the law.  Semwen v. Seaward Holdings, Micronesia, 7 FSM R. 111, 113 (Chk. 1995).  MLSC is not a governmental entity created by the national, state, or local government.  Thus, this argument is meritless.

V.  Conclusion

We concur that the trial court properly granted the Rule 41(b) motion for dismissal at the close of Plaintiff’s case because George failed to present a prima facie case for relief.  In the absence of clear error, it would be improper for us to disturb the factual findings of the trial court.  We also determine that issues 2 and 4 raised by the Appellants were not addressed and were waived.

Accordingly, we affirm the trial court’s decision to dismiss George’s claims, motion for new trial date, and taxing costs.

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