### The Honorab le Michael J. Davis, United States District Judge 1 

### for the District of Minnesota. The Honorable Nancy C. Dreher, United Sta tes Bankruptcy Judge 2 

### for the District of Minnesota. ___________ No. 95-2892

___________ Sou-Hsiung Jack Chiu * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Amy Kam-Ling Wong, * * (UNPUBLISHED) Appellee. *

___________ Submitted: March 15, 1996 Filed: May 15, 1996

___________ Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________ PER CURIAM. Sou-Hsiung Jack Chiu appeals from the district court 's affirmance of 1 the bankru ptcy court's order denying his post-trial motion to reopen the 2 judg ment against debtor Amy Kam-Ling Wong. Chiu sued Wong seeking a constructive trust onher house. Although the bankruptcy court initially denied him relief, we reversed. See Chiu v. Wong , 16 F.3d 306 (8th Cir. 1994). The bankruptcy court held a trial and im posed a constructive trust on the house on September 30, 1994. Chiu then filed a motion asking the court to amend its fi ndings and judgment to compensate him for the rental value of the property and for the amount of delinquent mortgage

### Chiu has also filed an affidavit of his attorney, which was 3 

### not part of the record before the trial court. Wong has moved to strike the affidavit as a matter outside the record, citing Fed
. Rule App. Proc. 10(a). We grant Wong's motion. -2- payments Wong owed on the property. He also ask ed the court to reopen the judgme nt and receive new evidence. He wanted to prove that Wong ha d dissipated the value of the house by failing to make mortgage payments
. He also sought to show he was entitled to the rental value of the house. The bankruptcy court denied the motion, and the district court affirmed. We affirm the district court.
The district court held that Chiu had made no record at trial t o support a judgment against Wong for the rent and mortgage payments. The court stated: Judge Dreher denied the motion because there was no thing in the record to warrant the amendment; the bankruptcy court refused to `slam this woman with a $48,000 judgment based on no record and based on no pleadings on remand.'

. . . . The criti cal issue in this case is the absence of an y litigation concerning the damages sought here. As Judge Dreher recogn ized, [Chiu's] prayer for relief only concerned th e imp osition of a constructive trust; there was no pleading o r proof offered concerning the recovery of an additio nal $48,000.
The district court stated that the record was "bereft of evidentiar y support" for Chiu's position. Chiu has filed on e page of trial transcript in his appendix before this Court. That testimony is not detailed enough 3 to support his request for $48,000, since it establishes only that Won g liv ed in the house at the time of trial and that she had missed abou t twenty mo rtgage payments. It does not establish a rental value for th e house. Nor does it show what proportion of the mortgage payments wer e principal and what interest, which would be necessary to show to wha t extent the missed mortgage payments dissipated the value or

### -3-

sim plyfailed to add to it. Since Chiu has not presented us a recor d suffic ient to support his proposed findings, we cannot conclude th e bankrup tcycourt erred in refusing to enter judgment against Wong fo r $48,000 in addition to the constructive trust.
Chiu also asked leave to amend his pleadings. Since he failed t o prove fact s sufficient to permit the court to enter judgment for him , amending his pleading could not help him. The bankruptcy court did not er r in denying his motion. Chiu also asked to reopen the recordunder Bankruptcy Rules 9023 and 9024 (incorporating Federal Rules of Civil Procedure 59 and 60) to tak e additional testimony on the rental and mortgage payment issues. Such a motion is addressed to the sound discretion of the trial court. Baxte r Int'l, Inc. v. Morris , 11 F.3d 90, 92 (8th Cir. 1993) (Rule 60(b)(2)) ; Birchem v. Burlington Northern R. Co. , 812 F.2d 1047, 1050 (8th Cir. 1987) (Rule 59). Chiu's attorney stated at oral argum ent that his motion was based on Wong's testimony at the remand trial that she ha d missed mortgage payments and had lived in the house. This evidence was not in any sense newl y discovered after trial. If the evidence is not newly discovered, th e movant is not entitle d to Rule 59 or 60(b)(2) relief for newly discovered evidence. Baxter Int'l , 11 F.3d at 92; Birchem , 812 F.2d at 1050.

The bankruptcy court did not abuse its discretion in refusing t o reopen Chiu's case. We affirm.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.