Farek v Ruben [2008] FMCSC 13; 16 FSM Intrm. 154 (Chk. S. Ct. App. 2008) (2 October 2008)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL CASE NO. 01-2005

ASSUNCION FABIAN FAREK, EDMOND FAREK, ANCHELY FAREK, ALFANSO FAREK, EDWARD FAREK, and ANES FAREK,
Appellants,

vs.

HERSIN RUBEN and MORIA RUBEN,
Appellees.

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OPINION

Argued: December 10, 2007
Decided: October 2, 2008

BEFORE:

Hon. Judah C. Johnny, Temporary Justice, Presiding*
Hon. Aliksa B. Aliksa, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Chief Justice, Kosrae State Court, Lelu, Kosrae
***Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants: Michael Marco
P.O. Box 1578
Weno, Chuuk FM 96942

For the Appellee: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Standard of Review  Civil Cases
Whether judgment was improperly entered in the appellees' favor when the appellants contend that they did not appear and present their case at trial because they had not received notice of trial is an issue of law which is reviewed de novo. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 156 (Chk. S. Ct. App. 2008).

Appellate Review  Standard of Review  Civil Cases
Whether the evidence was sufficient to support the trial court's verdict for the appellees involves a review of the trial court's findings of fact and is reviewed under a "clearly erroneous" standard. An appellate court will overturn a trial court's factual findings only when they are not supported by substantial evidence in the record, or if they were the result of an erroneous conception of the applicable law, or if, after a consideration of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 156 (Chk. S. Ct. App. 2008).

Civil Procedure  Notice; Civil Procedure  Service; Constitutional Law  Due Process
It is essential that the trial court insure that its own notice procedures satisfy the requirements of due process. In order to comply with due process, Chuuk State Supreme Court Civil Procedure Rule 5(a) requires that service of all notices and other papers must be made upon each party affected. Under Rule 5(b), service must be made on a party's counsel, if represented, and may be effectuated either by "delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of court." Rule 5(b) further specifies that delivery of "a copy" means handing it to counsel; or leaving it at his office with his clerk of other person in charge thereof; or if there is no one in charge, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion residing therein. Service by placing a notice in a counsel's box in the clerk's office is not a method of service recognized by Rule 5(b). Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 156-57 (Chk. S. Ct. App. 2008).

Civil Procedure  Notice; Civil Procedure  Service; Constitutional Law  Due Process  Notice and Hearing
Service of a notice of trial by placing the notice in a counsel's box in the clerk's office is deficient service and tantamount to non-service when it results in a party's failure to be informed of the noticed trial date. When a court's notice of trial on the merits is not served on a party, that party's rights to due process of law under the Chuuk and FSM constitutions are violated, and the trial court's failure to serve notice of a trial date and time is plain error. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157 (Chk. S. Ct. App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Judgments  Collateral Attack
A judgment or final order entered against a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157 (Chk. S. Ct. App. 2008).

Constitutional Law  Due Process  Notice and Hearing; Judgments  Void
A trial court's failure to notify the appellants of trial was plain error and the judgment that was entered is therefore void. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157 (Chk. S. Ct. App. 2008).

Appellate Review  Decisions Reviewable; Constitutional Law  Due Process  Notice and Hearing
Although appellants could have addressed the issue of deficient notice of trial with an appropriate filing in the trial court, they were not required to before filing an appeal since a trial court may not shirk its responsibility to provide notice in compliance with due process merely because a party has a measure of recourse when notice is deficient. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157 (Chk. S. Ct. App. 2008).

Appellate Review  Decisions Reviewable; Constitutional Law  Due Process  Notice and Hearing
Where a plain error is involved that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings, a party will not be deemed to have waived the right to challenge the issue on appeal. In such cases, where the court's integrity is brought into question because the court did not follow its own procedures for providing notice of trial, the only remedy is to permit a new trial where adequate notice is given. Farek v. Ruben, [2008] FMCSC 13; 16 FSM Intrm. 154, 157-58 (Chk. S. Ct. App. 2008).

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COURT'S OPINION

JUDAH C. JOHNNY, Temporary Justice, Presiding:

This is an appeal from the trial court's decision in Chuuk State Supreme Court trial division Civil Action No. 81-2001 confirming appellees' ownership of certain land. We vacate the judgment and remand for a new trial.

I. BACKGROUND

The Chuuk State Supreme Court trial division entered judgment on December 7, 2004. At issue was the validity of a land transfer from Singeru Maipi to the appellees, Hersin and Moria Ruben. On May 1, 2001, appellees filed their complaint for trespass against appellants, Assuncion Fabian Farek and Edmond Farek. On May 31, 2001, appellants answered and counterclaimed.

According to the trial court record, on March 14, 2003 the court issued a notice for trial to continue on March 26, 2003. The return of service signed by the court's clerk indicates that service of the notice was effectuated on both parties by "leaving a copy at their mail box located at the Clerk of Courts Office." Record on Appeal at 38. There is no indication that appellants received actual notice of the trial date or that notice was effected by means other than the March 14, 2003 notice. According to the trial court record, on March 26, 2003, counsel for appellees appeared, but neither appellants nor their counsel appeared. After appellees presented their case, the court took the matter under advisement as to whether to issue a judgment, or whether to issue an order for appellants to show cause why they had not appeared for trial. No further action is indicated in the record until the court entered judgment appellees' favor on December 7, 2004 finding that appellants "failed to prove that they are part owners" of the land at issue. Judgment at 4.

II. THE LAW

A. Issues and Standard of Review

The issues before us are whether judgment was improperly entered in favor of appellees when appellants contend that they did not appear and present their case at trial because they had not received notice of trial, and whether the evidence was sufficient to support the trial court's verdict for the appellees. The former issue is one of law, which we review de novo. Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 108 (Chk. S. Ct. App. 2007). The latter issue involves a review of the trial court's findings of fact and is reviewed under a "clearly erroneous" standard. Chk. Civ. R. 52(a). An appellate court will overturn a trial court's factual findings only when they are not supported by substantial evidence in the record, or if they were the result of an erroneous conception of the applicable law, or if, after a consideration of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. Ruben, 15 FSM Intrm. at 108.

B. Notice of Trial

It is essential that the trial court insure that its own notice procedures satisfy the requirements of due process. Panuelo v. Amayo, [2004] FMSC 13; 12 FSM Intrm. 365, 375 (App. 2004). In order to comply with due process, Rule 5(a) of the Chuuk State Supreme Court Rules of Civil Procedure requires that service of all notices and other papers must be made upon each party affected. Under Rule 5(b) service must be made on a party's counsel, if represented, and may be effectuated either by "delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of court."[1] Chk. Civ. R. 5(b). Rule 5(b) further specifies that delivery of "a copy" means "handing it to [counsel]; or leaving it at his office with his clerk of other person in charge thereof; or if there is no one in charge, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion residing therein." Id.

Service by placing a notice in a counsel's box in the clerk's office is not a method of service recognized by Chuuk Civ. R. 5(b). The court concludes that service of the notice of trial was deficient and was tantamount to non-service, resulting as it did in the failure of a party to be informed of the noticed trial date.

When a court's notice of trial on the merits is not served on a party, that party's rights to due process of law under the Chuuk and FSM constitutions are violated. Murilo Election Comm'r v. Marcus, [2007] FMCSC 15; 15 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2007). A trial court's failure to serve notice of a trial date and time is plain error. Id.; see also Panuelo v. Amayo, 12 FSM Intrm. at 375; Kama v. Chuuk, [2002] FMCSC 5; 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002); Dereas v. Eas, [2006] FMCSC 4; 14 FSM Intrm. 446, 454 (Chk. S. Ct. Tr. 2006). A judgment (or final order) entered against a person without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time. Dereas, 14 FSM Intrm. at 452; Pastor v. Ngusun, [2002] FMCSC 17; 11 FSM Intrm. 281, 285 (Chk. S. Ct. Tr. 2002); Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001).

In this case, the court holds that the trial court's failure to notify appellants of trial was plain error and that the judgment entered was, therefore, void. Murilo Election Comm'r, 15 FSM Intrm. at 224; Panuelo, 12 FSM Intrm. at 372; Dereas, 14 FSM Intrm. at 452; Pastor, 11 FSM Intrm. at 285; Hartman, 10 FSM Intrm. at 97.

C. Preservation of Issue for Appeal

Appellees contended at oral argument that appellants had not preserved the issue of the deficient trial notice for appeal as they had not exhausted their available remedies in the trial court, instead raising the issue for the first time with the appellate court.

Although appellants could have addressed the issue of deficient notice with an appropriate filing in the trial court, they were not required to. A trial court may not shirk its responsibility to provide notice in compliance with due process merely because a party has a measure of recourse when notice is deficient. See Wainit v. Weno, [2002] FMCSC 21; 10 FSM Intrm. 601, 606-07 (Chk. S. Ct. App. 2002) (while a court that has announced a decision without notice and an opportunity to be heard can always be asked to reconsider and hear argument, this opportunity is a poor substitute for the right to be heard before the decision is announced).

Further, where a plain error is involved that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings, a party will not be deemed to have waived the right to challenge the issue on appeal. Panuelo, 12 FSM Intrm. at 372. In such cases, where the integrity of the court is brought into question because the court did not follow its own procedures for providing notice of trial, the only remedy is to permit a new trial where adequate notice is given. Id. at 375; Wainit v. Weno, 10 FSM Intrm. at 607 (where a litigant's due process right to be heard has been violated, a judgment is voided and should be vacated on that ground alone). The court finds that this is just such a case where the integrity of the court is brought into question because it did not follow its own procedures.

III. CONCLUSION

The trial court's entry of judgment without providing appellants' notice of trial violated their rights to due process and was therefore void. As the court reverses on this basis, it is unnecessary for it to address the remaining, substantive issue regarding the trial court's findings.

The trial court judgment in favor of appellees is vacated and the proceeding remanded to the trial court for a new trial.

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^[1]There is no indication in this case that appellants’ counsel’s mailing address was unknown.