The Honorable Michael J. Davis, United States District Judge 1

for the District of Minnesota.

 The Honorable Nancy C. Dreher, United States 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* (UNPUBLISHED)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. *

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 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 bankruptcy court's order denying his post-trial motion to reopen the 2

judgment against debtor Amy Kam-Ling Wong. Chiu sued Wong seeking a

constructive trust on her 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 imposed a constructive trust

on the house on September 30, 1994. Chiu then filed a motion asking the

court to amend its findings 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.

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payments Wong owed on the property. He also asked the court to reopen the

judgment and receive new evidence. He wanted to prove that Wong had

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 to

support a judgment against Wong for the rent and mortgage payments. The

court stated: 

Judge Dreher denied the motion because there was nothing 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 critical issue in this case is the absence of any

litigation concerning the damages sought here. As Judge Dreher

recognized, [Chiu's] prayer for relief only concerned the

imposition of a constructive trust; there was no pleading or

proof offered concerning the recovery of an additional $48,000.

The district court stated that the record was "bereft of evidentiary

support" for Chiu's position. Chiu has filed one 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 Wong

lived in the house at the time of trial and that she had missed about

twenty mortgage payments. It does not establish a rental value for the

house. Nor does it show what proportion of the mortgage payments were

principal and what interest, which would be necessary to show to what

extent the missed mortgage payments dissipated the value or
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simply failed to add to it. Since Chiu has not presented us a record

sufficient to support his proposed findings, we cannot conclude the

bankruptcy court erred in refusing to enter judgment against Wong for

$48,000 in addition to the constructive trust.

Chiu also asked leave to amend his pleadings. Since he failed to

prove facts sufficient to permit the court to enter judgment for him,

amending his pleading could not help him. The bankruptcy court did not err

in denying his motion.

Chiu also asked to reopen the record under Bankruptcy Rules 9023 and

9024 (incorporating Federal Rules of Civil Procedure 59 and 60) to take

additional testimony on the rental and mortgage payment issues. Such a

motion is addressed to the sound discretion of the trial court. Baxter

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 argument that his motion was based on

Wong's testimony at the remand trial that she had missed mortgage payments

and had lived in the house. This evidence was not in any sense newly

discovered after trial. If the evidence is not newly discovered, the

movant is not entitled 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 to

reopen Chiu's case. We affirm.

A true copy.

Attest:

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