Agueda G. Roberto, by Her Guardian Jose T. Gutierrez v. Joseph Ray Roberto and Vicente Lizama Aguon

452 F.2d 635, 1971 U.S. App. LEXIS 6760

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 1971
• Docket: 26258
• Status: Published

Opinions

PER CURIAM:

Agueda Roberto brought this suit to cancel a deed. In her complaint she alleged that she was incompetent at the time of its signing, that she signed because the grantee exerted undue influence over her, and that the transfer lacked consideration. The District Court, sitting without a jury, resolved all the issues against her and entered judgment dismissing the action. She appeals, and we affirm.

Appellant’s attack on the sufficiency of the evidence to support the findings must fail. The record reveals conflicting testimony on the material issues, and we cannot conclude that the trial court’s factual resolutions of them were clearly erroneous.¹

Nor does Appellant’s remaining contention have merit. Appellant was bound by her agreement, reflected in the pretrial order, with respect to the scope of her examination of the defendants as adverse witnesses. Although Rule 16, F.R.Civ.P., provides that a pretrial order may be “modified at the trial to prevent manifest injustice,” Appellant did not attempt at trial to invoke that proviso. Moreover, Appellant testified at length concerning the matters about which she had unsuccessfully sought to interrogate the defendants.

The judgment is affirmed.

1 . Appellant also urges that the court, in reaching its conclusion, erroneously applied Sec. 39 of the Civil Code of Guam— the statute providing for rescission of instruments — instead of Sec. 3412 of the Code — the provision dealing with their cancellation. We need not decide whether the court erred, for it made findings which show that appellant is not entitled to recover under either statute.