House of Travel v Neth [1995] FMSC 38; 7 FSM Intrm. 228 (Pon. 1995) (4 September 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as House of Travel v Neth, [1995] FMSC 38; 7 FSM Intrm. 228 (Pon. 1995)

HOUSE OF TRAVEL and RAUL MIRALLES,
Plaintiffs,

vs.

SHELTEN NETH,
Defendant.

CIVIL ACTION NO. 1994-011

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Decided: September 4, 1995

APPEARANCES:

For the Plaintiffs:
Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862

For the Defendant:
Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Attachment and Execution
A writ of execution may issue without seriously exploring other possible means of satisfying the judgment. House of Travel v. Neth, [1995] FMSC 38; 7 FSM Intrm. 228, 229 (Pon. 1995).

Attachment and Execution
Execution may be had against a judgment debtor's non-exempt personal property, not against his interests in land. House of Travel v. Neth, [1995] FMSC 38; 7 FSM Intrm. 228, 229 (Pon. 1995).

Property - Personal
Personal property is property other than land or interests in land. House of Travel v. Neth, [1995] FMSC 38; 7 FSM Intrm. 228, 229 (Pon. 1995).

Attachment and Execution
Property may not be taken by the government, even in aid of a judgment, without due process of law. In executing the writ, due process of law may be assured by directing the executing officer to comply strictly with the statutory provisions for levying a writ of execution. House of Travel v. Neth, [1995] FMSC 38; 7 FSM Intrm. 228, 229-30 (Pon. 1995).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

Plaintiff, House of Travel, requested relief in the form of a Writ of Execution, pursuant to 6 F.S.M.C. 1407. A Stipulated Judgment in the amount of $5,118.53 against the defendant, Shelten Neth, and in favor of House of Travel, was ordered by the court and entered September 6, 1994. Provisions were made in the Stipulated Judgment for the payment of the principal by Neth, in varying amounts, approximately monthly, starting August 12, 1994, until June 26, 1995. The Stipulated Judgment also included a provision for the payment of interest at nine percent (9%), but did not indicate how the sum would be calculated.

Neth did not make any payments until November 26, 1994, when he tendered $2,358.53, which was the amount of the principal owed to that date. Neth has made no further payments since then. The principal amount now due is $2,760.00.

House of Travel filed two Motions for Writ of Execution on July 3, and July 21, 1995. Neth opposed the motions by a filing of July 31, 1995. House of Travel replied in support of its motions on August 10, 1995.

Legal Analysis

House of Travel has a Stipulated Judgment against Neth for payment of money in the principal amount now reduced to $2,760.00, and seeks relief under 6 F.S.M.C. 1407, which provides:

Every court, at the request of the party recovering any civil judgment in that court for the payment of money, shall issue a writ of execution against the personal property of the party against whom the judgment has been rendered, except as provided in section 1415 of this chapter.

Id. (emphasis added). FSM Rule of Civil Procedure 69 likewise specifies that the process to enforce a judgment for payment of money is by writ of execution. Since it appears that House of Travel has a judgment for payment of money against Neth, a Writ of Execution may issue.

Contrary to Neth's assertions, a writ of execution may issue without seriously exploring other possible means of satisfying the judgment. In re Pacific Islands Distributing Co.[1988] FMSC 31; , 3 FSM Intrm. 575, 582 (Pon. 1988). Likewise, House of Travel's assertion that it may execute its judgment for money against land is incorrect based on a plain reading of the statute by which it seeks relief. Section 1407 states that execution may be had against a party's personal property." Personal property is property other than land or interests in land. Black's Law Dictionary 1217 (6th ed. 1990). We thus avoid an unnecessary decision of a constitutional issue raised by Neth, and argued at length by House of Travel. In re Otokichy, [1982] FMSC 16; 1 FSM Intrm. 183, 190 (App. 1982).

Property may not be taken by the government, even in aid of a judgment, without due process of law. See Suldan v. FSM (II), [1983] FMSC 14; 1 FSM Intrm. 339, 351 (Pon. 1983). Since the essence of due process is notice of a hearing and an opportunity to be heard, the parties are directed to appear for a hearing on all the issue raised in this Order at the court's next regular trial setting in Pohnpei. In re Extradition of Jano, 6 FSM Intrm. 93, 99 (App. 1993).

In executing the writ, due process of law may be assured by directing the executing officer to comply strictly with the statutory provisions for levying a writ of execution, found in 6 F.S.M.C. 1408. See Bank of Guam v. Island Hardware, Inc., [1986] FMSC 22; 2 FSM Intrm. 281, 285 (Pon. 1986). Further, only certain types of personal property are subject to execution. Title 6 F.S.M.C. 1415(1) and (2) specifies the property that is exempt from execution.

Finally, the Stipulated Judgment states that part of the money judgment shall consist of interest. The Stipulated Judgment is not clear on how to calculate the interest it allows, and neither party has suggested a ready calculation. As such, the court requests that the parties submit written briefs on the issue of calculating interest on the judgment.

If at the hearing on plaintiff's motions, the court finds that good cause exists, the court may issue a writ of execution on the following conditions:

1. A Writ of Execution may on that date issue against Shelten Neth for the principal amount of the Stipulated Judgment in favor of House of Travel entered by the court on September 6, 1994, the principal amount reduced to $2,760.00, plus the interest, if any, to be determined at the hearing.

2. The Chief of the FSM Division of Security and Investigation (DSI) will be directed to satisfy the money judgment of $2,760.00, plus the interest, if any, by executing against the non-exempt, personal property owned solely by Shelten Neth.

3. In levying execution of the Writ, the Chief of FSM DSI will be directed to assure strict compliance with provisions of 6 F.S.M.C. 1408, levying execution. Further, the Chief of FSM DSI will be directed to assure that no exempt personal property of Shelten Neth, as defined in 6 F.S.M.C. 1415(1) and (2), is executed against in levying this Writ.

4. The Chief of FSM DSI will be directed to return the Writ to this Court, indicating on the Writ what the DSI has done to complete its directive, within seven (7) days of receipt of the Writ by DSI, or in such greater reasonable time as may be specified in the Pohnpei State Code or the Pohnpei State Rules of Civil Procedure governing writs of execution.

Order

Good cause appearing:

1. The parties are directed to file no later than September 30, 1995, written briefs on the issue of calculating the interest specified in the Stipulated Judgment.

2. The parties are further directed to appear at a hearing on all issues raised in this Order at the court's next regular trial setting in Pohnpei State. The court will specify the time and date of the hearing at a later date.

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