v.
HO PYO HONG, Defendant-Appellant
High Court of
Appellate Division
AP No. 01-98
[1]
Issues not raised by the pleadings but nonetheless tried by the implied or
express consent of the parties are treated in all respects as if they had been
raised in the pleadings.
[2]
A court will not find implied consent to try an unpled issue where the party is
prejudiced or unfairly surprised by the introduction of evidence outside the
scope of the pleadings.
[3]
Where party had notice that unpled claim would be raised at trial, he could not
claim unfair surprise by it being so tried.
[4]
Where party had opportunity to raise any and all known legal defenses to unpled
claim at trial, but chose instead to deny the claim, he could not claim
prejudice resulting from Court’s allowing unpled claim to be tried. [3ASR3d37]
Before
RICHMOND, Associate Justice, GOODWIN,*
Acting Associate Justice, and MUNSON,**
Acting Associate Justice, SAGAPOLUTELE, Associate Judge, TAUANU’U, Temporary
Associate Judge.
Counsel:
For Appellant, Charles V. Ala`ilima
For Appellee,
Aumoeualogo S. Salanoa
OPINION
GOODWIN,
Acting Associate Justice:
Byung Soo Ki (d/b/a Sharkfin Trading
Although
the business records provide scant documentation of the transactions between
the parties, the trial court found that their usual practice was as described
above, and that a balance was due from Hong to Ki. The court determined that Hong was indebted
to Ki with respect to one transaction, a transfer of $50,000 made on
Finally, the trial court found that the remaining amount, approximately
$30,000 owed by Hong to Ki in the normal course of their business operations,
had been the subject of an accord and satisfaction between the parties; Hong’s
debt had been discharged by the transfer of processing equipment and a new
refrigerator to Ki, and Hong’s [3ASR3d38]
agreement to refrain from any activity in the sharkfin business.
While, on appeal Hong contests the trial court’s determination with
respect to the $50,000 transaction, there is nothing in the record to support
his assertion of clear error on the facts. This court affords particular weight
to the trial judge’s assessment of conflicting and ambiguous facts, especially
where the findings are based in part on the trial court’s evaluation of
conflicting evidence and live testimony. Roman Catholic Diocese of
Hong’s principal argument on appeal is that the trial court departed
from the issues framed by the pleadings and permitted the admission of
testimony that Hong claims changed the plaintiff’s theory of the case. We find
no error on the part of the trial court in this respect.
[1] Notice pleading rules provide that issues not raised in the pleadings
but nonetheless tried by the express or implied consent of the parties are
treated in all respects as if they had been raised in the pleadings. T.C.R.C.P.
15(b); Fed. R. Civ. P. 15(b). Hong
did object to evidence about the $50,000 transaction, but Ki pointed out that
the accounting attached to the complaint was consistent with evidence
introduced during the trial. Furthermore, Hong acknowledges that Ki and other
witnesses testified about the transaction during the trial. Indeed, Hong was
questioned personally about the transaction during the trial, at which time he
chose to deny any knowledge of it. Hong had actual notice of Ki’s intent to
litigate the $50,000 transaction, but the court could have found also that Hong
impliedly consented to the trial of the issue.
[2-4] Hong
argues, correctly, that a court will not find implied consent where a party is
prejudiced or unfairly surprised by the introduction of evidence beyond the
scope of the pleadings.
Hong apparently argues that the trial court found that all outstanding
debts between Hong and Ki were settled by the accord and satisfaction.
Therefore, he contends, the $50,000 debt recognized by the trial court was
discharged by the accord and satisfaction.
This argument is without merit. [3ASR3d39]
The trial court found that the equipment and forbearance agreement were
given by Hong in exchange for the forgiveness of approximately $30,000 of
outstanding debts. 1 A.S.R.3d
143, 145 (Trial Div. 1997). The
trial court did not find that any and all outstanding debts were resolved by
the parties, as Hong contends.
Hong does not expressly argue that the trial court’s findings on this
issue were erroneous, but appears to ask this court to hold that the accord and
satisfaction included an additional $50,000 of indebtedness. In the absence of
evidence suggesting that the court’s ruling was in error, we have no basis for
reversal.
Conclusion
The trial division was presented with a business dispute, to be
resolved in reliance on ambiguous fact, conflicting testimony and intentionally
deceptive accounting records. The trial division was well-situated to evaluate
the credibility of the witnesses and evidence offered by the parties. In the
absence of credible evidence that casts doubt on the factual findings of the
trial court, this court must affirm the trial court’s judgment.
AFFIRMED.
***********
*
Honorable Alfred T. Goodwin, Senior Circuit Judge,
**
Honorable Alex R. Munson, Chief Judge, District Court for the Commonwealth of
the