Chuuk v Davis [2000] FMSC 17; 9 FSM Intrm. 471 (App. 2000) (14 August 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Chuuk v Davis, [2000] FMSC 17; 9 FSM Intrm 471 (App. 2000)

STATE OF CHUUK,
Appellant,

vs.

MENRY DAVIS,
Appellee.

___________________________________

APPEAL CASE NO. C4-1998

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

OPINION

Argued: April 30, 1999
Decided: August 14, 2000

APPEARANCES:

For the Appellant:
Joses Gallen, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

For the Appellee:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appeal and Certiorari - Decisions Reviewable
The FSM Supreme Court appellate division may hear appeals in civil cases from all final decisions of the FSM Supreme Court trial division and from interlocutory orders involving injunctions, receivers and receiverships, decrees determining parties' rights and liabilities in admiralty cases, and any other civil case in which an appeal is permitted as a matter of law. Permission may also be sought for an interlocutory appeal pursuant to Appellate Rule 5(a). Chuuk v. Davis, [2000] FMSC 17; 9 FSM Intrm. 471, 473 (App. 2000).

Appeal and Certiorari - Decisions Reviewable
The general rule is that appellate review of a trial court is limited to final orders and judgments. Final orders and judgments are final decisions. Chuuk v. Davis, [2000] FMSC 17; 9 FSM Intrm. 471, 473 (App. 2000).

Appeal and Certiorari - Decisions Reviewable
When an appeal is from a trial court post-judgment order that does not make any specific order concerning how the judgment is to be satisfied, or what specific funds are to be used to satisfy the judgment, or specify the method that should be used to provide payment to the plaintiff, and that does not make a specific finding about the fastest way for the judgment to be paid, and which, by its terms, extends only for two months when the trial court would then take further action, if necessary, it is not appeal from a final decision and will be dismissed. Chuuk v. Davis, [2000] FMSC 17; 9 FSM Intrm. 471, 473-74 (App. 2000).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This appeal arises from the trial court's order in aid of judgment, issued July 13, 1998. The appeal is dismissed since we conclude it is not from a final order.

I. Procedural History

After a three-day trial and submission of written closing arguments, the trial judge made his Findings of Fact and Conclusions of Law. Davis v. Kutta, [1996] FMSC 25; 7 FSM Intrm. 536 (Chk. 1996). The judge awarded the plaintiff, Menry Davis, $130,000 in damages exclusive of attorney's fees and costs. Of this sum, the state and the five defendant police officers are jointly and severally liable for $80,000; the state and the police chief are jointly and severally liable for $20,000; and the state, the five defendant police officers and the police chief are jointly and severally liable for $30,000. Id. at 549-50. The clerk entered the judgment on August 9, 1996.

The plaintiff's attorney, pursuant to the court's order, then moved for an award of attorney's fees and costs. On December 5, 1997, costs and fees totaling $43,237.05 were awarded. Davis v. Kutta, [1997] FMSC 38; 8 FSM Intrm. 218 (Chk. 1997). The defendants were held jointly and severally liable for this award in the same proportion as they were held liable for the underlying judgment. Id. at 224. Neither the liability finding and judgment nor the attorney's fees and costs award were appealed. The judgment and the award are thus final.

On December 15, 1997, Davis moved for orders in aid of judgment against all defendants. In December 1997, the State of Chuuk paid $5,000 on this judgment and then paid another $800 in March, 1998. The motions were heard May 15, 1998. The state and only two of the individual defendants appeared - the former police chief and one of the police officers. Two defendants had died and two others had moved off-island.

The trial court's order in aid of judgment was entered July 13, 1998. Davis v. Kutta, [1998] FMSC 18; 8 FSM Intrm. 338 (Chk. 1998). One individual defendant who had appeared was ordered to pay the plaintiff $7.50 biweekly and the other was ordered to sell property that he had bought for $2,000 with the proceeds to go to the plaintiff. Id. at 342-43. The trial judge determined that the state had the ability to pay the judgment. Id. at 340, 343. The judge ordered Davis to file on September 15, 1998 a report indicating the judgment's payment status. The trial judge stated, "If the judgment, attorney's fees, and all accrued interest are not paid in full at that time, the court will then take further action in accordance with this memorandum." Id. at 344.

The state filed its Notice of Appeal on August 14, 1999. On August 17, 1999, the state's Chief Litigator filed a Defendants' Application to Stay Execution of Judgment/Order. The application asked that the court stay the execution of the July 13, 1998 order against the defendants pending the defendants' appeal. On September 21, 1998, Davis filed her report indicating that on July 15, 1998 the state had only paid an additional $480 on the judgment and that no other payments had been made by anyone. On October 7, 1998, the trial judge denied the stay application as to the individual defendants because they had not filed notices of appeal, and denied the state's stay application on the ground that the July 13th order was not intended as a final order, but anticipated a later order.

II. Appellant's Contentions

The state contends that the trial judge erred as a matter of law in finding that the state had the ability to pay the judgment. The state also contended that the judge erred by requiring the state to pay the judgment without the funding first having been made available in accordance with the Chuuk Constitution, the Chuuk Financial Management Act, and the Chuuk Restrictive Measure laws.

III. Discussion

The appellee contends, and we agree, that the first issue that must be addressed is the propriety of this appeal - whether it is from a final decision. In civil cases, we hear appeals "from all final decisions" of the FSM Supreme Court trial division. FSM App. R. 4(a)(1)(A). Certain exceptions exist for interlocutory orders involving injunctions, FSM App. R. 4(a)(1)(B), receivers and receiverships, FSM App. R. 4(a)(1)(C), and decrees determining parties' rights and liabilities in admiralty cases, FSM App. R. 4(a)(1)(D). None of those exceptions apply to this appeal. Neither does the exception for "any other civil case in which an appeal is permitted as a matter of law." FSM App. R. 4(a)(1)(E). Nor has permission been sought for an interlocutory appeal pursuant to Appellate Rule 5(a). Thus we must determine that this appeal is from a final decision before we can consider its merits.

"The general rule is that appellate review of a trial court is limited to final orders and judgments." Etscheit v. Adams, [1994] FMSC 55; 6 FSM Intrm. 608, 610 (App. 1994); see also Melander v. Kosrae, [1993] FMSC 40; 6 FSM Intrm. 257, 259 (App. 1993); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992); In re Main[1990] FMSC 14; , 4 FSM Intrm. 255, 257 (App. 1990). Final orders and judgments are final decisions. This appeal is from a post-judgment order. The question is thus whether the July 13th order in aid of judgment is a final order and therefore appealable.

Because only the state appealed, the only part of the July 13th order before us is that part which pertains to the defendant state. Turning to that portion of the order, it only states that if the judgment has not been paid in full by September 15, 1998, the trial court would take some further action. While the July 13th order did find that the defendant state had the ability to pay at the time of the May 15, 1998 hearing (but made no finding about the same ability as of July 13, 1998, see Hadley v. Bank of Hawaii, [1996] FMSC 54; 7 FSM Intrm. 449, 453 (App. 1996)), and identified funding sources that could be used, it did not make any specific order concerning how the state was to satisfy the judgment. It did not order those specific funds to be used to satisfy the judgment. Nor did it specify the method that the state should use to provide payment to the plaintiff, and it did not make a specific finding about the fastest way for the state to pay the judgment. Although the appellant state contends that the trial court ordered it to violate various laws to satisfy the judgment we cannot see that the state was ordered to do anything in particular. In the absence of any specific order as to how and where the funds to satisfy the judgment were to be obtained, this contention cannot stand.

More importantly, the July 13th order, as against the state, extended, by its terms, only until September 15, 1998, when the trial court would "then take further action," if necessary. Davis, 8 FSM Intrm. at 344. What further action the trial court might have taken is too speculative for us to consider. Thus the July 13th order cannot be said to be a final order against the state. It was not a final decision.

IV. Conclusion

This appeal is not from a final decision of the trial division. Nor is it an appeal that is permitted under one of the exceptions to the final decision rule. It is not ripe for adjudication. It is therefore dismissed.