Santos v Bank of Hawaii [1999] FMSC 38; 9 FSM Intrm. 285 (App. 1999) (17 December 1999)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Santos v Bank of Hawaii, [1999] FMSC 38; 9 FSM Intrm. 285 (App. 1999)

EDWEL H. SANTOS,
Appellant,

vs.

BANK OF HAWAII,
Appellee.

___________________________________

APPEAL CASE NO. P1-1999

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

*Acting Chief Justice, Kosrae State Court, Lelu, Kosrae

ORDER OF DISMISSAL

Decided: December 17, 1999

APPEARANCES:

For the Appellant:
Edwel H. Santos
P.O. Box 642
Kolonia, Pohnpei FM 96941

For the Appellee:
Michael A. White, Esq.
White, Pierce, Mailman & Nutting
P.O. Box 5222 CHRB
Saipan, MP 96950

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HEADNOTES

Appeal and Certiorari - Decisions Reviewable
The general rule is that appellate review of a trial court is limited to final orders and judgments. A policy of judicial economy dictates against allowing piecemeal appeals. A final decision is one that leaves nothing open to further dispute and which ends the litigation on the merits, leaving the trial court with no alternative but to execute judgment. Santos v. Bank of Hawaii, [1999] FMSC 38; 9 FSM Intrm. 285, 287 (App. 1999).

Appeal and Certiorari - Decisions Reviewable; Civil Procedure - Sanctions
When a trial court has determined a party's liability for an attorney's fees sanction but has not determined the amount of that liability, it is not a final order because the trial court could not execute on the order when the amount of attorney fees had not been fixed. Only once the fees have been fixed will the order become final and appealable. Santos v. Bank of Hawaii, [1999] FMSC 38; 9 FSM Intrm. 285, 287 (App. 1999).

Appeal and Certiorari - Decisions Reviewable
An appeal dismissed because it is not from a final order is dismissed without prejudice to any future appeal made from the order once it has become final. Santos v. Bank of Hawaii, [1999] FMSC 38; 9 FSM Intrm. 285, 288 (App. 1999).

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COURT'S OPINION

PER CURIAM:

This comes before us on the appellee Bank of Hawaii's motion to dismiss the appeal on various grounds. We conclude that this appeal does not arise from a final order and therefore grant the Bank's motion to dismiss. This dismissal is without prejudice to any of the issues raised by the appellant Edwel H. Santos. Our reasoning follows.

I. Background

On July 10, 1996, the plaintiff, Bank of Hawaii, filed suit against Semenster Ehpel and Edwel H. Santos because Ehpel had defaulted on a loan which Santos had also co-signed. A judgment on the pleadings was entered against defendant Ehpel on March 14, 1997. On April 20, 1998, the trial court granted the Bank's motion for summary judgment against Santos and denied Santos's cross-motion for summary judgment. Judgment against defendant Santos was entered at a later date. On July 22, 1998, the Bank moved for an order in aid of judgment, and the court set a September 2, 1998 hearing on the motion, ordering Santos to appear. On August 27, 1998, Santos filed a motion to quash the order requiring him to appear on the grounds that the judgment against him was void because there had been no oral argument on the summary judgment motions and because the Bank had been represented by an attorney without a foreign investment permit. That motion was denied by a court order entered August 31, 1998.

Two days after the September 2, 1998 hearing, the court issued two separate orders in aid of judgment, one against judgment-debtor Ehpel reducing his payments on the judgment to $50 biweekly and the other against judgment-debtor Santos ordering payments of $100 a month. Santos then filed a motion for relief from the September 4, 1998 order in aid of judgment against him. Santos brought the motion on the grounds that the order against him was prejudicial and a nullity because it listed only Santos as a defendant in the caption and that it violated the FSM Constitution's judicial guidance clause because it ordered Santos, a cosigner, to pay more than Ehpel, the principal debtor;^[1] because, in his view, the evidence given at the hearing showed that Santos was only able to pay the $75 a month that he had requested the court allow him to pay; because it ordered Santos to make his payments to an office outside of Pohnpei; and because the plaintiff's attorney did not have foreign investment permits or local business licenses. The bank opposed the motion and requested attorney's fees for having to defend a motion it considered totally devoid of merit. Santos did not respond to the Bank's request for attorney's fees.

On December 29, 1998, the court denied Santos's motion and awarded the Bank reasonable attorney's fees as costs for its counsel's work in connection with the motion for relief. The court gave the Bank 30 days to submit its evidence of reasonable fees incurred. The Bank submitted its request on January 26, 1999. Santos filed his notice of appeal on February 3, 1999. On February 26, 1999, the trial court granted his request to stay the December 29, 1998 order pending appeal. That stay order noted that the court had not yet reviewed the Bank's request to fix attorney's fees. To date, the trial court has not determined the amount that is a reasonable fee.

II. The Motion to Dismiss

The Bank filed a motion to dismiss on September 15, 1999. The Bank makes four arguments in favor of dismissal: 1) that Santos is not an attorney admitted to practice before the FSM Supreme Court and has never received permission to appear without the supervision of an attorney although the appellate rules require that briefs be signed by an admitted attorney, FSM App. R. 31(d), and that only admitted attorneys and trial counselors are eligible to appear before the FSM Supreme Court, FSM App. R. 46; 2) that the appeal is not from a final order; 3) that Santos has failed to request the portions of the transcript necessary to decide the appeal; and 4) that Santos has failed to file a proper appendix, but has instead filed as an appendix, a list of documents that would be included in an appendix. Santos has not filed an opposition to this motion.

Although there is some merit in all of the Bank's contentions, we conclude that the Bank's second contention is dispositive and grant the Bank's motion to dismiss. The Bank's second contention is that the appeal is not from a final order and therefore not appealable because, while Santos's liability for attorney's fees has been determined, the amount of those fees has not yet been fixed.

The general rule is that appellate review of a trial court is limited to final orders and judgments. Iriarte v. Etscheit, [1998] FMSC 3; 8 FSM Intrm. 231, 235 (App. 1998); Etscheit v. Adams, [1994] FMSC 55; 6 FSM Intrm. 608, 610 (App. 1994); In re Extradition of Jano, 6 FSM Intrm. 23, 24 (App. 1993). A policy of judicial economy dictates against allowing piecemeal appeals. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 17 (App. 1997). A final decision is one that leaves nothing open to further dispute and which ends the litigation on the merits, leaving the trial court with no alternative but to execute judgment. Damarlane v. United States, [1995] FMSC 35; 7 FSM Intrm. 202, 204 (App. 1995).

In Kihara Real Estate, Inc. v. Estate of Nanpei (II), [1994] FMSC 51; 6 FSM Intrm. 354, 356 (Pon. 1994) the trial court correctly noted that when summary judgment had been granted on the issue of liability, but the issue of damages was still pending, the right to appeal had not been lost, even though 10 months had elapsed, because no final judgment had been entered and the time to file an appeal would not start running until a final judgment was entered. In Kosrae v. Melander, [1993] FMSC 40; 6 FSM Intrm. 257, 259 (App. 1993) the appellate court held that a trial court decision that granted partial summary judgment on one claim of a complaint containing four could not be said to be final decision so the appeal was dismissed. Similarly, in the appeal before us, liability for attorney's fees has been determined, but the amount of that liability has not been. Even in the absence of a stay the trial court could not have executed on the order because the amount of attorney fees had not been fixed. The amount is open to further dispute. It is thus not a final order. Only once the fees have been fixed will the order become final and appealable.

Since we dismiss the appeal because it is not from a final order, we do not reach the Bank's other grounds for dismissal. We would have had to consider them if the appeal had been from a final order.

III. Conclusion

Accordingly, because this appeal is not from a final order and because permission for an interlocutory appeal pursuant to Appellate Rule 5 has neither been sought nor granted, this appeal is hereby dismissed. This dismissal is not a ruling on the merits of Santos's appeal and is therefore without prejudice to any future appeal Santos may take from the attorney's fees order once it has become final.

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^[1] The mathematics of how the $100 a month Santos was ordered to pay is greater than the $50 biweekly that Ehpel was ordered to pay escapes us. Santos's $100 a month is $1200 a year. Ehpel's $50 biweekly equals $1300 a year.