Pohnpei v Ponape Construction Co, Inc [1993] FMSC 35; 6 FSM Intrm. 221 (App. 1993) (8 October 1993)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Pohnpei v. Ponape Construction Co., [1993] FMSC 35; 6 FSM Intrm. 221 (App. 1993)

[1993] FMSC 35; [6 FSM Intrm. 221]

STATE OF POHNPEI
Appellant,

vs.

PONAPE CONSTRUCTION CO., INC., ROBERT ETSCHEIT, JR.,
d/b/a ACE/M.N. CONSTRUCTION CO., and CAROLINE ISLANDS DEVELOPMENT CORPORATION,)
Appellees.

APPEAL CASE NO. P9-1993

ORDER

Richard H. Benson
Associate Justice

Decided: October 8, 1993

APPEARANCES:

For the Appellant:
Joi L. Saylor, Esq.
Assistant Attorney General
Office of the Pohnpei Attorney General
Kolonia, Pohnpei FM 96941

For the Appellee: no appearance

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HEADNOTES

Appeal and Certiorari
When an appellant has applied to the appellate division for a stay it normally will be considered by all justices of the appellate division, but in exceptional cases application may be made to and considered by a single justice. The power of the appellate division or a single justice thereof "to stay proceedings during the pendency of an appeal" is not limited by the Rules of Civil Procedure. Pohnpei v. Ponape Constr. Co., [1993] FMSC 35; 6 FSM Intrm. 221, 222 (App. 1993).

[6 FSM Intrm. 222]

Federalism - National/State Power
Comity, the respect of one sovereign for another, and respect for state sovereignty are important principles respected by the courts. Pohnpei v. Ponape Constr. Co., [1993] FMSC 35; 6 FSM Intrm. 221, 222-23 (App. 1993).

Appeal and Certiorari
The purpose of a supersedeas bond is to protect the interests of the appellees. A bond protects the appellees by providing a fund out of which it may be paid if the money judgment is affirmed, and it meets the concerns of the appellee that the appellant might flee the jurisdiction or conceal or dissipate assets so as to render itself judgment-proof. The latter concerns are not present when the appellant is a state. Pohnpei v. Ponape Constr. Co., [1993] FMSC 35; 6 FSM Intrm. 221, 223 (App. 1993).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

Appellant, State of Pohnpei, has requested a stay be granted in this matter while the appeal is pending. Appellant filed a timely application for stay of judgment with the trial division. It was denied by order of the trial division dated September 1, 1993 on the ground that no supersedeas bond was supplied.

Appellant now applies to the appellate division for a stay. No opposition has been filed. A motion for a stay "normally will be considered by all justices of the . . . appellate division . . . but in exceptional cases . . . application may be made to and considered by a single justice of the Supreme Court." FSM App. R. 8(a). Justice Yinug is presently out of the country, and a third justice has not yet been designated for the panel. Since this is an exceptional case I will act on it as single justice.

Our Rules of Civil Procedure do take cognizance of state law. Under certain circumstances a stay may be granted according to state law. A judgment debtor subject to a lien upon his property is entitled "to such stay as would be accorded [to him] had the action been maintained in the courts of that state [where his property is]." FSM Civ. R. 62(f).

While there is no judgment lien on the appellant's property in this case the latter half of the rule indicates a deference to state law. In the courts of Pohnpei State, "[w]hen an appeal is taken by the Ponape State Government or an officer or agency thereof or by direction of any department of the State Government and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant." Pon. Civ. R. 55(e). Clearly, no bond would be required for a stay pending appeal if this action had been heard in Pohnpei State Supreme Court.

The power of the appellate division or a single justice thereof "to stay proceedings during the pendency of an appeal" is not limited by the provisions of Rule 62. FSM Civ. R. 62(g). The appellate division may "make any order appropriate to preserve the status quo." Id.

The interests of comity deserve consideration as well. Comity is the respect of one sovereign for another - in this case between the courts of the national sovereign and the sovereign

[6 FSM Intrm. 223]

State of Pohnpei. This court considers respect for state sovereignty an important principle. E.g., Panuelo v. Pohnpei (III), [1986] FMSC 15; 2 FSM Intrm. 244, 246 (Pon. 1986); Panuelo v. Pohnpei (I), [1986] FMSC 2; 2 FSM Intrm. 150, 156 (Pon. 1986). See also Pryor v. Moses, [1989] FMSC 16; 4 FSM Intrm. 138, 143 (Pon. 1989).

The purpose of a supersedeas bond is to protect the interests of the appellees. 4 Am. Jur. 2d Appeal and Error § 369 (1962). Two types of relief were granted the appellees - money judgments totaling $232,400, and specific performance. The interest of specific performance, by its nature, cannot be protected by a bond. A bond protects the appellees by providing a fund out of which it may be paid if the money judgment is affirmed.1 It meets the concerns of the appellee that the appellant might flee the jurisdiction or conceal or dissipate assets so as to render itself judgment-proof. These concerns are not present when the appellant is a state.

Now therefore in the interests of comity and because no stay would be required in the Pohnpei State Supreme Court, it is hereby ordered that, in order to preserve the status quo, the judgment of June 21, 1993, entered by the trial division in this matter is stayed, and that the appellant shall not be required to post a supersedeas bond.

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