Supreme Court of Palau

[ 8] rial court's conclusionssions of law are reviewed de novo. ROP v. Terekiu Clan, 21 ROP 21, 23 (2014). The court's factual findings are reviewed under the clearly erroneous standard. g v. Yobech,. 17 ROP 21OP 210, 215 (2010). Regarding issues not raised in the trial court

[n]o axiom of law is better settled than that a party who raises an issue for the first time on appeal will be deemed to have forfeited that issue, even if it concerns a matter of constitutional law. We have repeatedly stated the general rule that parties cannot seek review of alleged errors of the trial court when they made no objection to the court's actions at the time.

Kotaro v. Ngirchechol, 11 ROP 235, 237 (2004) (internal citations and quotations omitted) (also discussing exceptions not pertinent to this appeal). Accord. Ngarameketii/Rubekul Kldeu v. Koror State Pub. Lands Auth., 2016 Palau 19 9 (collecting cases).

A NOTICE OF DISMISSAL BY PLAINTIFFS MUST COMPLY WITH RULE 41.

[ 9] es and the other defendafendants object to the trial court's refusal to dismiss the plaintiffs' case based upon “notice of dismissal” filed by the co-Plaintiff Remeliik. Although tpellants argue that the trie trial court committed error by not giving effect to the “notice of dismissal,” they failed to discuss the very Rule of Civil Procedure that addresses dismissals. Rule 41(a) unambiguously provides that a dismissal of an action must be by order of the court, unless the plaintiff has filed a notice of dismissal before the opposing party has filed an answer or motion for summary judgment, or unless the notice is signed “by all parties to the action.” ROP R. Civ. P. 41(a)(1)(B). Since none of the defendants in this case signed the notice, it is ineffective even if Ms. Remeliik had obtained the signatures of her co-plaintiffs.
[ 10] This crovides a good exod example of the reason for the Rule. As explained by the trial court,

Ms. Dimitruk, the plaintiffs' former counsel made it clear to the court that Evangelistalibang and his faction wann wanted to proceed with the case, Ms. Dimitruk withdrew as counsel for the plaintiff because a dispute arose between Evangelisto Ongalibang and Remeliik. This dispute is now between Paulus Ongalibang and Remeliik.

Order, Civ. Action No. 14-181 (July 4, 2017).

[ 11]purpose of the Rule̵’s requirement that all parties sign a dismissal notice is to assure that all parties are aware of, and agree to, such a dismissal. Here, the Defendants were atteg to terminate the litigatiigation with the assistance of Plaintiff Remeliik over the objection of the Ongalibang faction. ^[4] The trial court was correct in giving the "notice of dismissal" no effect.

OBJECTIONS TO THE CALCULATIONS OF DAMAGES MUST BE RAISED IN THE TRIAL COURT

[ 12]ke their objection to thto the trial court's refusal to give effect to the "notice of dismissal," which was preserved for appeal, their objection to the computation of damages was not.
[& 13] The hearing on daon damages was duly-noticed. The Appellants did not appear, and the hearing proceeded on the remaining issue of damages without them.
[ 14] On appeal, Mr. Blaand tand the other appellants do not raise any issue regarding receipt of notice of that hearing, nor of the propriety of the court holding the hearing without them. They now raise two issues ding the computation of damf damages. Neither issue was preserved for appeal. One objection is the failure of the court at the trial on damages to consider two affidavits that Appellants previously submitted as part of their summary judgment motion filed the previous May. Although affidavits are allowed as part of summary judgment motions to show that no genuine issues remain for trial, ROP R. Civ. P. 56(c), contested issues that require hearings are governed by the Rules of Evidence. ROP R. Evid. 1101(a). The affidavits are hearsay and would have been inadmissible if they had been offered as evidence at the hearing. ROP R. Evid. 801-802.
[ 15] Their secbjection is this that the court arrived at its computation of monetary damages by adding to the cost of repair to the real property ($300) the expense of hiring an attorney to obtain a temporary restraining order and successfully negotiating a stipulated injunction ($3500) to halt further damages. Appellants consider this result as an award of attorney’s fees. Citing 14 PNC & 402, they ahey argue that the trial court failed to include a finding that the complaint was “groundless, frivolous, or brought in bad faith,” which is a requirement of section 402 for an award of fees pursuant to that section.
[ 16]ough that provision of s of section 402 has no applicability in this case, since it was the Appellees who were the plaintiffs, and they prevailed, more generally “[c]laims for attorney’s fees and related non-taxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.” ROP R. Civ. Pd)(2)(A).
[ 17]his case, the court's or's order did not refer to an award of attorney's fees. Rather, it heard evidence of damages, and plaintiffs' claimed damages include cosretaining Attornetorney Dimitruk to first obtain a temporarporary restraining order and then secure an injunction. The court incorporated that expense as part of the computation of damages. The plaintiffs did not seek compensation for the later work of Attorney Senior.
[ 18] Inabsence of a developeeloped record in the trial court, and a properly preserved objection, we decline to address the issue regarding when and under what circumstances attorney's fees expended to successfully halt on-going property damage may be classified as part of compensable damages.
[ 19] The trial courtdgment ient is AFFIRMED.

^[1] Although Appellants request oral argument, the Court detes pursuant to ROP R. App. P. 34(a) that oral argument is u is unnecessary to resolve this matter.

^[2] Apparently this was a second attempt by Augustino Blailes to use Otong Clan property as a burial site over Clan objections. See Ongalibang, et al. v. Blailes, et al. Civ. Action No. 10-160 (Tr. Div. 2010). In that case, the court issued a preliminary injunction preventing the burial.

^[3] Appellants believe that the substitution of Paulus Ongalibang comes too late because it was made more than ninety days after the death of the party. ROP R. Civ. P. 25(a)(1). They misconstrue the rule. See, e.g., Grandbouche v. Lovell, [1990] USCA10 378; 913 F.2d 835, 836 (10th Cir.1990) (holding the 90-day time limitation "is not triggered unless a formal suggestion of death is made on the record, regardless of whether the parties have knowledge of a party's death"). "Thus, if a party dies, ideally his or her attorney will file a ‘suggestion of death’ with the court and serve it upon all parties. After the suggestion of death is filed, a 90-day countdown begins." McKenna v. Pacific Rail Service, [1994] USCA3 1236; 32 F.3d 820, 836 (3d Cir. 1994).

^[4] "What is troubling to the court is the font and style of the Notice of Dismissal is the same font and style found in defendants' filings." Order Denying Motion to Dismiss or for Summary Judgment, Civ. Action No. 14-181, 3 n. 2 (June 26, 2017).

Also, at the July 3 hearing, "[i]t [did] not escape the court's attention that defense counsel spoke on behalf of Plaintiff Remeliik." Order, Civ. Action No. 14-181 (July 4, 2017).