College of Micronesia - FSM v Rosario [2001] FMSC 19; 10 FSM Intrm. 296 (Pon. 2001) (9 July 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as College of Micronesia-FSM v. Rosario
[2001] FMSC 19; 10 FSM Intrm. 296 (Pon. 2001)

[2001] FMSC 19; [10 FSM Intrm. 296]

COLLEGE OF MICRONESIA-FSM,
Plaintiff,

vs.

HUGO ROSARIO,
Defendant.

CIVIL ACTION NO. 1999-092

ORDER CONDITIONALLY GRANTING STAY
PENDING APPEAL

Richard H. Benson
Associate Justice

Decided: July 9, 2001

APPEARANCES:

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

For the Defendant:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari - Stay
The court may order that, before a stay pending appeal will be granted in the appellant's favor, the appellant must post an appropriate cash bond which would fairly compensate the appellee should the appeal be unsuccessful. College of Micronesia-FSM v. Rosario, [2001] FMSC 19; 10 FSM Intrm. 296, 298 (Pon. 2001).

Appeal and Certiorari - Stay; Costs
If an appellee prevails on appeal it will be entitled to recover its trial court and appellate costs, and the court may add the trial court costs to the amount of the appeal bond required for a stay. College of Micronesia-FSM v. Rosario, [2001] FMSC 19; 10 FSM Intrm. 296, 298 (Pon. 2001).

Appeal and Certiorari - Stay; Costs
The trial court may require an appellant to file a bond to cover costs on appeal. College of Micronesia-FSM v. Rosario, [2001] FMSC 19; 10 FSM Intrm. 296, 298 (Pon. 2001).

[10 FSM Intrm. 297]

Appeal and Certiorari - Stay; Civil Procedure - Injunctions
A modification of a permanent injunction pending appeal may be conditioned upon the posting of an appeal bond. College of Micronesia-FSM v. Rosario, [2001] FMSC 19; 10 FSM Intrm. 296, 298 (Pon. 2001).

Appeal and Certiorari - Stay
Interest earned on an appellate bond placed in an interest-bearing account will be given to the party entitled to the principal. College of Micronesia-FSM v. Rosario, [2001] FMSC 19; 10 FSM Intrm. 296, 298 (Pon. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On June 5, 2001, this Court entered an Order detailing its findings as to damages in favor of COM-FSM and against defendant Hugo Rosario. That Order stated, in relevant part that:

If Mr. Rosario has dismantled and removed nothing from Parcel No. 020-B-02, judgment is entered in favor of COM-FSM and against Mr. Rosario in the amount of $800.00, the reasonable cost of demolishing and removing the structure and the foundation slab. If Mr. Rosario has dismantled and removed the structure and building materials from Parcel No. 020-B-02, but has not removed the foundation, judgment is entered in favor of COM-FSM and against Mr. Rosario in the amount of $180.00, the reasonable cost of demolishing the concrete foundation slab. If Mr. Rosario has dismantled and removed both the building structure and materials, and the foundation, COM-FSM shall receive nothing in damages. . . . Costs is acaron are herebhereby awarded to COM-FSM. COM-FSM shall have fifteen (15) days to provide the Court with verification of its costs. Post-judgment interest shall accrue at the statutory rat9% peum.

O

Order rder Nisi (June 5, 2001). This Order was served on Mr. Rosario by mail; therefore, he had until July 11, 2001 to dismantle and remove the building structure, materials, and foundation which he erected on Parcel No. 020-B-02.

On June 19, 2001, Mr. Rosario filed a Notice of Appeal and a Motion for Stay of Execution of Judgment Pending Appeal. Mr. Rosario requests that the Court stay its Order which required Mr. Rosario to remove his building and foundation within 30 days, or be liable to COM-FSM for the $800.00 cost of removal. Mr. Rosario states that it is appropriate for the Court to preserve the status quo by allowing Mr. Rosario to keep his building in place while the appeal is pending.

COM-FSM responded to Mr. Rosario's request for a stay on June 25, 2001. COM-FSM stated that it would not oppose the stay, provided that (1) Mr. Rosario be required to post a bond, and (2) the permanent injunction be modified to prohibit Mr. Rosario from entering or occupying the structure he erected on Parcel No. 020-A-02.

Mr. Rosario filed a reply on June 28, 2001, in which he states (1) that Mr. Rosario is certain to remove his structure and the concrete foundation if he is not successful on appeal, so that the $800.00 bond, plus costs, does not reflect the damage that will result to COM-FSM; (2) that the amount of bond requested by COM-FSM exceeds Mr. Rosario's immediate ability to pay; and (3) COM-FSM is not entitled to costs unless it prevails on appeal, so any bond should not include COM-FSM's costs.

[10 FSM Intrm. 298]

The Court finds that a cash bond in the amount of $1,097.50 is appropriate, and must be posted by Mr. Rosario before a stay pending appeal will be granted in his favor. This is an amount which will fairly compensate COM-FSM should Mr. Rosario's appeal be unsuccessful. First, the Court finds that the $800.00 in damages is appropriately included in the cash bond, as there are no assurances that Mr. Rosario will in fact dismantle and remove the structure he has erected on Parcel No. 020-A-02. In addition, if COM-FSM prevails on appeal, it will be entitled to recover its costs from this case below, FSM Civ. R. 54(d), and its costs on appeal, FSM App. R. 39(a). COM-FSM has submitted its bill of costs for this case in the amount of $172.50. The Court approves that amount, and will add it to the amount of the appeal bond. Finally, the Court estimates that COM-FSM's costs on appeal will be about $125.00, for transcripts which have been ordered and copying costs. The trial court may require an appellant to file a bond to cover costs on appeal. FSM App. R. 7.

Mr. Rosario has stated that he is not financially able to pay any more than $100.00 per month towards a bond. The Court finds that he has not provided adequate evidence of his financial situation to support this assertion. In addition, even if he did provide such evidence, as a condition of the stay COM-FSM is entitled to a bond which will cover the judgment and its costs should it prevail on appeal.

As for the permanent injunction, COM-FSM requests that, as a condition of the stay, the Court modify the permanent injunction to prohibit Mr. Rosario from entering or occupying the structure he erected on Parcel No. 020-A-02, as the permanent injunction currently does not reflect the possibility that the structure will remain standing. The Court agrees that, if Mr. Rosario posts the cash bond and this stay becomes effective, the permanent injunction should be so modified. Mr. Rosario has not opposed this modification. Accordingly, upon the approval by this Court of the cash bond posted by Mr. Rosario, the permanent injunction of May 14, 2001 will be modified to provide that Mr. Rosario is prohibited from entering or occupying the structure he erected on Parcel No. 020-A-02.

Mr. Rosario shall have two weeks from the date of service of this Order on him to post a cash bond with the Clerk of Court of the FSM Supreme Court Trial Division in Pohnpei in the amount of $1,097.50. If posted, the bond will be placed in an interest-bearing account. The earned interest will be given to the party entitled to the principal. If that cash bond is not posted within two weeks of service of this Order on Mr. Rosario, Mr. Rosario's Motion for Stay of Execution of Judgment Pending Appeal is denied, and COM-FSM may proceed to dismantle the structure and foundation erected by Mr. Rosario on Parcel No. 020-A-02 and recover damages from Mr. Rosario as contemplated by the Court's Order dated June 5, 2001.

Accordingly, it is HEREBY ORDERED:

1. Mr. Rosario's Motion for Stay of Execution is HEREBY GRANTED on the condition that he post a bond in the amount of $1,097.50 with the Clerk of Court of the FSM Supreme Court Trial Division in Pohnpei within two weeks of the date of service of this Order on him. If the Court does not receive and approve that bond within two weeks of the date of service of this Order on Mr. Rosario, his Motion for Stay of Execution is HEREBY DENIED.

2. If the Court receives and approves the $1,097.50 bond, the Permanent Injunction in this case dated May 14, 2001, is HEREBY MODIFIED to provide that:

Mr. Rosario, his agents, servants, employees, family members, and those persons in active concert or participation with him, are hereby enjoined and restrained from entering or occupying the structure he erected on Parcel No. 020-A-02.

3. In the event that Mr. Rosario does not post the $1,097.50 bond within two weeks of the

[2001] FMKSC 6; [10 FSM Intrm. 299]

date of service of this Order on him, this Court's June 5, 2001 Order is HEREBY MODIFIED to provide that he shall have until the expiration of that two week period to dismantle and remove the structure and foundation he erected on Parcel No. 020-A-02.

4. If Mr. Rosario does not post a bond within two weeks of service of this Order on him, the Permanent Injunction dated May 14, 2001 in this case is HEREBY MODIFIED to provide that:

Mr. Rosario his agents, servants, employees, family members, and those persons in active concert or participation with him, are hereby enjoined and restrained from interfering with COM-FSM's dismantling and removal of the building, materials, and foundation of the structure which Mr. Rosario erected on Parcel No. 020-A-02.

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