Hartman v Bank of Guam [2001] FMSC 60; 10 FSM Intrm. 89 (App. 2001) (7 March 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Hartman v Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89 (App. 2001)

SAMUEL HARTMAN,
APPEAL CASE NO. C4-1999
Appellant,

vs.

BANK OF GUAM,
Appellee.

APPEAL CASE NO. C4-1999

OPINION

Argued: September 11, 2000
Decided: March 7, 2001

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*

Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellant:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Appellee:
Anita P. Arriola, Esq.
Arriola, Cowan & Arriola
P.O. Box X
Hagatna, Guam 96910

* * * *

HEADNOTES

Appeal and Certiorari - Decisions Reviewable
When, on August 12, 1998, the trial court entered a judgment on four claims pursuant to FSM Civil Rule 54(b) that stated that "there is no just reason for delay," and expressly directed entry of judgment as to the four claims, then that judgment is final and appealable, and the time to appeal began to run as of the date of the entry of the judgment, August 12, 1998. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 94 (App. 2001).

Appeal and Certiorari - Notice of Appeal
Upon a showing of excusable neglect or good cause, the court appealed from may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by Rule 4(a). Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 94 (App. 2001).

Appeal and Certiorari - Notice of Appeal
In the absence of a notice of appeal filed within 42 days after entry of judgment, a putative appellant has a maximum of 72 days after entry of judgment in which to file, for good cause, a motion to extend the time for the filing of the notice of appeal. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 94 (App. 2001).

Appeal and Certiorari - Decisions Reviewable
The time limit set by Rule 4(a)(1) is jurisdictional, and if that time is not extended by a timely motion to extend that time period under Rule 4(a)(5), the appellate division is deprived of jurisdiction to hear the case. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 95 (App. 2001).

Appeal and Certiorari - Decisions Reviewable
An issue raised for the first time on appeal is waived. An exception to this rule is in the case of plain error, or error that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 95 (App. 2001).

Courts - Recusal
4 F.S.M.C. 124(6) provides that a party may move to disqualify a Supreme Court justice, and requires that such a motion be accompanied by an affidavit stating the reasons for belief that grounds for disqualification exist. Any disqualification motion must be filed before the trial or hearing, unless good cause is shown. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 95-96 (App. 2001).

Courts - Recusal
The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 96 (App. 2001).

Constitutional Law - Due Process - Notice and Hearing; Judgments
The basic tenets of due process of law are notice and an opportunity to be heard. As applied to judgments, this means that a judgment may not be rendered in violation of these constitutional limitations and guaranties. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated to apprise interested parties of the pendency of the action, which is itself a corollary to another requisite of due process, the right to be heard. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 96-97 (App. 2001).

Civil Procedure - Parties; Constitutional Law - Due Process; Judgments
A judgment may not be rendered in favor of or against a person who was not made party to the action. A party to an action is a person whose name is designated on the record as a plaintiff or defendant. A person may not be made a party to a proceeding simply by including his name in the judgment. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001).

Constitutional Law - Due Process - Notice and Hearing; Judgments
A judgment entered against a party without notice or an opportunity to be heard is void and is subject to direct or collateral attack at any time. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001).

Civil Procedure; Constitutional Law - Due Process; Judgments
When someone is accorded none of these due process guarantees with respect to a "judgment" against it, the judgment and ensuing order in aid of judgment and writ of execution are void as a matter of law, and these procedural infirmities inherent in the judgment are subject to attack at any time, and thus are outside the adjudicative framework established by the rules of procedure. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001).

Courts - Recusal
It is not unusual for the same judge to hear interrelated matters involving one or more parties in common, and the fact that the same judge hears different cases involving the same party or parties and related issues does not automatically result in an appearance of partiality under 4 F.S.M.C. 124(1). Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 & n.5 (App. 2001).

Courts - Recusal
A party in cases involving related issues is not entitled as a matter of right to a different judge for each case. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 97 (App. 2001).

Courts - Recusal
In the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge properly meets his obligation to hear the case. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 98 (App. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

Appellant Samuel Hartman ("Hartman") appeals a judgment against him and in favor of appellee Bank of Guam ("the Bank"). Below, Associate Justice Machime O'Sonis ("O'Sonis") of the Chuuk State Supreme Court was a party in both his individual and official capacities.[1] On the Bank's motion for summary judgment, Associate Justice Richard H. Benson ("Justice Benson"), on June 18, 1998, found in favor of the Bank on liability as to the Bank's due process, civil rights, and wrongful execution claims, and also determined that the Bank was entitled to injunctive relief. After trial, Justice Benson on April 14, 1999, dismissed the Bank's abuse of process claim, and awarded damages and costs against Hartman totalling $42,951.96. This appeal followed.

For the reasons that follow, we affirm the judgment of the trial court.

I. Facts

The facts are set out in the trial court's Finding of Facts and Conclusions of Law entered on April 14, 1999. [Bank of Guam v. O'Sonis, [1999] FMSC 26; 9 FSM Intrm. 106, 109-11 (Chk. 1999).] In summary, the case below, Civil Action No. 1997-1057, was based on the actions of Hartman and O'Sonis in a case filed in the Chuuk State Supreme Court, styled Probate Case No. 25-94 ("PR 25-94").[2] In that suit, Hartman sought money alleged to have been received by his brother Fritz Hartman as compensation for certain World War II war claims. Hartman alleged that his brother had deposited that money with the Bank sometime in 1976. On May 4, 1995, O'Sonis, acting in his capacity as an associate justice of the Chuuk State Supreme Court, issued an order in PR 25-94 in which he directed that the names on two bank accounts with the Bank be changed from Fritz Hartman to Samuel Hartman. The Bank was not served with a complaint, nor given any opportunity to appear in PR 25-94, which was an adversary proceeding as to the Bank. On January 17, 1997, O'Sonis issued an order in aid of judgment - apparently based on the May 4, 1995, order - against the Bank, directing it to change the name on the specified bank accounts and comply with his May 4, 1995, order. The Bank refused to comply, citing the fact that the accounts had been closed for years. On November 18, 1997, O'Sonis issued a writ of execution, directing the Bank to pay $167,976.40 (principal of $56,406.26 plus interest of $111,560.14) to Hartman. O'Sonis also denied a motion by the Bank for a stay of execution pending appeal. On December 9, 1997, the Bank then filed the case below in the Chuuk trial division of this court, and sought to enjoin the enforcement of the writ of execution.

Prior to Hartman filing PR 25-94, the issue of the war claim funds had been addressed in FSM Civil Action No. 1989-1023. In that case, In re Estate of Hartman[1994] FMSC 38; , 6 FSM Intrm. 326, 329 (Chk. 1994), the trial court issued a memorandum on February 16, 1994, in which it stated that "the funds received in 1976 through a war claim are not an asset of the estate, and may not be traced to any present asset."[3] All existing cash and bank accounts were deemed to pass to Fritz Hartman's wife and two children. In Civil Action No. 1989-1023, O'Sonis acted as counsel for Hartman until he was appointed an associate justice of the Chuuk State Supreme Court.

In May of 1995, after O'Sonis had issued the order in PR 25-94 directing the Bank to change the names on the two accounts, but before the order in aid of judgment and writ of execution issued in that case, Hartman filed Civil Action No. 1995-1008, Hartman v. Bank of Guam, in the FSM Supreme Court in Chuuk, alleging that the Bank had refused to honor the "judgment" - by which was apparently meant the May 4, 1995 order - in PR 25-94. Justice Benson presided in Civil Action No. 1995-1008, as he did in Civil Action No. 1989-1023. In Civil Action No. 1995-1008, Hartman alleged that the Bank committed conversion by permitting withdrawal of funds from the two accounts. Upon the Bank's motion to dismiss, the trial court held that any claim on one of the bank accounts was barred by the statute of limitations, and issued a stay as to the second bank account pending the final judgment in Civil Action No. 1989-1023. After the final judgment was entered in Civil Action No. 1989-1023, the court on June 16, 1997, dismissed the case as to the second bank account pursuant to FSM Civil Rule 41(b) due to Hartman's failure to prosecute. Thus, as of November 18, 1997, when O'Sonis issued the writ of execution against the Bank in PR 25-94, two cases in the FSM Supreme Court trial division had addressed the war funds issue (Civil Action No. 1989-1023) and the related bank accounts (Civil Action No. 1995-1008) that were the basis for the writ.

In seeking damages and injunctive relief in this case below, the Bank alleged in its complaint that Hartman based his petition in PR 25-94, in which O'Sonis was the presiding judge, on wilful and malicious false statements; that O'Sonis was Hartman's counsel in a previous case in which the same issues were litigated; that O'Sonis had a financial stake in the outcome of the disposition of the war claims funds; and that the existence of the war claims funds in the Fritz Hartman estate had already been determined adverse to Hartman in FSM Civil Action Nos. 1989-1023 and 1995-1008. The Bank contended that despite these facts, Hartman and O'Sonis proceeded to seek and procure a writ of execution against the Bank of Guam which was a non-party and never received a summons and complaint, and which did not have notice or hearing before issuance of the May 5, 1995, order in aid of judgment.

With this factual background as context, the court considers in turn the issues raised by Hartman on appeal.

II. Issues

As framed by Hartman, the issues are:

A. The trial court erred in finding Hartman liable to the bank for the deprivation of the bank's due process rights and the evidence also do [sic] not show a deprivation of the bank's due process rights by Hartman.

B. The trial court erred in finding Hartman, a private individual, liable civilly for the deprivation of the civil rights of the bank under 11 F.S.M.C. 701. If not, then 11 F.S.M.C. 701, to the extent it applies to the acts of private individuals is unconstitutional.

C. The trial court erred in finding that Hartman committed wrongful execution against the bank by his litigation of probate action no. 25-94 and in obtaining the order in aid of judgment and writ of execution against the bank, and in imposing liability for attorney's fees and costs for such cause of action upon Hartman.

D. Hartman cannot be liable for attorney's fees and costs of the bank in obtaining the injunction issued by the trial court and the trial court erred in granting the injunction to the bank.

E. The failure of the presiding justice in the case to recuse himself for his past and continuing judicial participation in two cases of similar issues and with Hartman being the party amount to deprivation of the due process rights of Hartman.

III. Discussion

A. Hartman's issues A. through D.

The Bank contends that Hartman's appeal is untimely as to these four issues. We agree.

The Bank filed a motion for partial summary judgment on April 29, 1998. At the hearing on that motion on May 19, 1998, defendants' counsel stated that he had not received the motion. By agreement, the Bank made its oral argument, and the defendants were granted 10 days to file and serve an opposition. No opposition was filed. On June 18, 1998, the trial court issued an order granting in part and denying in part the Bank's motion. The court found in favor of the Bank as to liability on four counts of the complaint: count 1, violation of due process; count 2, deprivation of civil rights under 11 F.S.M.C. 701(3); count 3, wrongful execution; and count 5, injunctive relief. As to count 6, declaratory relief, the court found that the requested relief was redundant, since the court granted injunctive relief. As part of its order, the trial court found that "a Civil Rule 54(b) determination to enter final judgment to fewer than all the claims presented by the case will clearly permit appeal from this order granting partial summary judgment." Bank of Guam v. O'Sonis, [1998] FMSC 13; 8 FSM Intrm. 301, 306 (Chk. 1998).

On August 12, 1998, the trial court entered its judgment in favor of the Bank on counts 1, 2, 3, and 5. The judgment provided pursuant to FSM Civil Rule 54(b) that "there is no just reason for delay," and expressly directed entry of judgment. As to these four claims, then, the August 12, 1998, judgment was final and appealable. Defendants' time to appeal began to run as of the date of the entry of the judgment, August 12, 1998.

The issues remaining for trial, held in January, 1999, were the damages as to counts 1, 2, 3, and 5, as well the whole of the remaining count of the complaint, count 4, abuse of process. The trial court found in favor of Hartman and O'Sonis on the abuse of process count, and as to the other counts, awarded damages against Hartman individually of $8,511.77 (based on costs for the Bank to defend PR 25-94), plus $1.00 in punitive damages, as well as attorney fees and costs of $5,380.69. Against Hartman and O'Sonis jointly and severally the court awarded attorney's fees of $24,841.83 and costs of $4,215.67 (based upon allowed fees and costs for the Bank to procure the permanent injunction). The judgment as to count 4 and the damages due on counts 1, 2, 3 and 5 was entered on April 14, 1999.

Rule 4(a)(1) of the FSM Rules of Appellate Procedure provides that appeals are taken in civil cases "by the filing of a notice of appeal . . . within ftwo (42) days afts after the date of the entry of the judgment or order appealed from." Rule 4(a)(5) of the FSM Rules of Appellate Procedure further provides that "[t]he court appealed from, u showf excusable negleneglect orct or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." Hence, in the absence of a notice of appeal filed within 42 days after entry of judgment, a putative appellant has a maximum of 72 days after entry of judgment in which to file, for good cause, a motion to extend the time for the filing of the notice of appeal. On June 7, 1999, or 12 days after the time for filing of the notice of appeal as to the April 14, 1999, judgment, Hartman filed a motion to enlarge the time for the filing of the notice of appeal. The motion was granted on June 22, 1999, and Hartman filed his notice of appeal the next day on June 23, 1999.

The notice of appeal, which specifies that it "appeals the decision and judgment of the Trial Division of the FSM Supreme Court . . . rendereApril114, 1999," w9," was timely as to the April 14, 1999, judgment. However, as to the August, 12, 1998, judgment, the notice of appeal was ineffective, coming as it did over ten months after entry of judgment, and in the absence of any motion within 72 days after entry of judgment under FSM Appellate Rule 4(a)(5) to extend the time for the filing of the appeal. The time limit set by Rule 4(a)(1) is jurisdictional, and if that time is not extended by a timely motion to extend that time period under Rule 4(a)(5), the appellate division is deprived of jurisdiction to hear the case. See Jonas v. Mobil Oil Micronesia, Inc., [1986] FMSC 23; 2 FSM Intrm. 164, 166 (App. 1986). Since Hartman's issues A. through D. by their terms go to matters finally adjudicated in the August 12, 1998, judgment, the court has no jurisdiction to hear those issues.

Accordingly, the appeal is dismissed as to Hartman's issues A. through D.

B. Issue E.: the trial court's alleged partiality

Hartman urges, for the first time on appeal, that Justice Benson should have recused himself from hearing the case below because of his participation in Civil Action Nos. 1989-1023 and 1995-1008. An issue raised for the first time on appeal is waived. Kosrae Island Credit Union v. Obet, [1996] FMSC 49; 7 FSM Intrm. 416, 419 (App. 1996); Nena v. Kosrae (I), [1993] FMSC 49; 6 FSM Intrm. 251, 254 (App. 1993); Paul v. Celestine, [1990] FMSC 2; 4 FSM Intrm. 205, 210 (App. 1990); Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 154 (App. 1987). An exception to this rule is in the case of "plain error," or error that is "obvious and substantial" and that "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." 5 Am. Jur. 2d Appellate Review § 771 (1995) (foos omitted).

Hartman asserts that plain error resulted from Justice Benson's failure to recuse himself sua sponte from the case below. He cites 4 F.S.M.C. 124(1), which provides that "[a] Supreme Court justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Hartman takes the view that the trial court's impartiality was called into question because the issue of the war claim funds was addressed in the case below, and Justice Benson had previously decided that issue in Civil Action No. 1989-1023, In re Estate of Hartman[1994] FMSC 38; , 6 FSM Intrm. 326, 329-30 (Chk. 1994). In this regard, Hartman relies on Article XI, section 2, of the FSM Constitution, which provides that "[n]o justice may sit with the appellate division in a case heard by him in the trial division."

This case clearly was not an appeal within the meaning of the FSM Rules of Appellate Procedure when it was filed in the trial division of the FSM Supreme Court in Chuuk. It was a case in which the trial division had original subject matter jurisdiction under Article XI, section 6(b) of the FSM Constitution. However, Hartman argues that this case in the trial division of the FSM Supreme Court was analogous to an appeal because it required Justice Benson to examine the merits of the Chuuk State Supreme Court orders issued in PR 25-94, which conflicted with decisions Justice Benson previously had rendered in Civil Action Nos. 1989-1023 and 1995-1008. Thus, Hartman argues that Article XI, section 2 should apply to the trial division case as if it were an appeal.

No case in the FSM to date has dealt with the situation where a litigant sought relief on appeal on the basis of 4 F.S.M.C. 124(1) without first making a motion to disqualify the judge at the trial level. See, e.g., Skilling v. FSM, [1986] FMSC 6; 2 FSM Intrm. 209 (App. 1986) (appeal based on trial judge's denial of motion to disqualify); In re Main[1990] FMSC 14; , 4 FSM Intrm. 255 (App. 1990) (seeking trial judge's disqualification before the Appellate Division on petition for writ of mandamus following trial judge's rejection of plea agreement); Etscheit v. Santos, [1991] FMSC 32; 5 FSM Intrm. 35 (App. 1991) (writ of prohibition sought from FSM Supreme Court Appellate Division following state court judge's denial of motion to disqualify). Section 124(6) of 4 F.S.M.C. provides that a party may move to disqualify a Supreme Court justice, and requires that such a motion be accompanied by an affidavit stating the reasons for belief that grounds for disqualification exist. Any disqualification motion must be filed before the trial or hearing, unless good cause is shown. Notably, no motion to disqualify Justice Benson ever was filed in this case.

Nor is the bias alleged in this case the type of partiality at which 4 F.S.M.C. 124(1) is aimed, which is extrajudicial bias, or bias resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. See FSM v. Jonas (II), [1983] FMSC 9; 1 FSM Intrm. 306, 317-18 (Pon. 1983). Hartman does not suggest that Justice Benson's alleged partiality resulted from information that he had received outside of the proceedings occurring before him. Rather, Hartman's contention is that the partiality arose because Justice Benson had heard Civil Action Nos. 1989-1023 and 1995-1008 involving issues related to Fritz Hartman's estate.

Civil Action No. 1989-1023, the probate of Fritz Hartman's estate in the trial division of the FSM Supreme Court in Chuuk, predated PR 25-94 by five years. Civil Action No. 1989-1023 originally was filed in the then Truk State Court, but subsequently removed to the FSM Supreme Court on the basis of diversity, since Fritz Hartman's wife, who sought appointment as the personal representative of the deceased, was an American citizen. In re Estate of Hartman[1989] FMSC 15; , 4 FSM Intrm. 386, 387 (Chk. 1989). On February 16, 1994, nine and a half months before Hartman filed PR 25-94, the court found in Civil Action No. 1989-1023 that "the funds received in 1976 through a war claim are not an asset of the [Fritz Hartman] estate, and may not be traced to any present asset." In re Estate of Hartman[1994] FMSC 38; , 6 FSM Intrm. 326, 329 (Chk. 1994). This finding did not preclude Hartman from bringing PR 25-94, since this order addressed only the present existence of the war claim funds, either directly or as traced to a present asset, and did not go to the issue of whether the funds had been inappropriately disposed of in the first place. Nor did the court rely on this determination in Civil Action No. 1989-1023 as a basis to preclude the conversion claim brought by Hartman in the FSM Supreme Court in Civil Action No. 1995-1008. Rather, in the latter case, on November 21, 1995, the trial court dismissed one count based upon the statute of limitations, while the other count was stayed pending a resolution of the issue of the war claims funds in Civil Action No. 1989-1023. This second count ultimately was dismissed on June 6, 1997, for failure to prosecute. But for present purposes, the point is that the order of February 16, 1994, in Civil Action No. 1989-1023 did not extinguish the war claim funds issue Hartman pursued in PR 25-94. That claim remained a putatively live cause of action as of November 30, 1994, the date of the filing of PR 25-94.

In resolving Hartman's contention that this case below was an appeal by analogy, we turn to the question whether he obtained a valid judgment in PR 25-94. The Chuuk State Supreme Court considered the "order" entered in PR 25-94 on May 4, 1995, to be a judgment, since it "accorded finality" to it. 46 Am. Jur. 2d Judgments § 17, at 382 (1994). Takito anto account scriveners' errors, both the subsequent order in aid of judgment entered on January 17, 1997, and writ of execution issued on November 18, 1997, based on the May, 4, 1995, order.[4] For purposes of discussion, we deem the May 4, 1995, order to be, as the trial court in PR 25-94 did, a "judgment."

The basic tenets of due process of law are notice and an opportunity to be heard. Etpison v. Perman, [1984] FMSC 3; 1 FSM Intrm. 405, 423 (Pon. 1984). As applied to judgments, this means that

[t]he limitations inherent in the requirements of due process of law extend to judicial, as well as political, branches of the government, so that a judgment may not be rendered in violation of these constitutional limitations and guaranties.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated . .&#16o apprise interested pted parties of the pendency of the action, which is itself a corollary to another requisite of due process, the right to be heard.

46 Am. Jur. 2d Judgments § 17, at 382-83 (1994)tnotes otes omitted). Further,

a judgment may not be rendered in favor of or against a person who was not made partyhe action . . . . A party taction is a pe a person whose name is designated on thon the record as a plaintiff or defendant. A person may not be made a party to a proceeding simply by including his name in the judgment.

Id. § 107, at61 (footnotes omittemitted). Finally, a judgment entered against a party without notice or an opportunity to be heard is void ansubject to direct or collateral attack at any time. Id. § 17, at 383. Beca Because tne Bank was accorded none of these due process guarantees with respect to the "judgment" - i.e., the order of May 4, 1995 - against it in PR 25-94, the judgmentensuing order in aid of judgment and writ of execution were were void as a matter of law. These procedural infirmities inherent in the judgment were subject to attack at any time, id., and thus were outside the adjudicative framework established by our Rules of Appellate Procedure, either directly or analogously. We are therefore unpersuaded that this case below can be analogized to an "appeal" of PR 25-94 so as to bring into play 4 F.S.M.C. 124(1) or Article XI, section 2 of the FSM Constitution. The fact that Justice Benson did not recuse himself sua sponte did not result in a situation under 4 F.S.M.C. 124(1) where his impartiality might reasonably be questioned.

In concluding this point, we note that in FSM v. Jonas (II), [1983] FMSC 9; 1 FSM Intrm. 306, 317-18 (Pon. 1983), the court was presented with a recusal motion because the trial judge had heard evidence relating to some of the criminal counts which were ultimately dismissed for lack of prosecution. In denying that motion, the court noted that "it is not uncommon here [in Micronesia] for a particular individual to appear before the same judge in more than one case." 1 FSM Intrm. at 317. This statement has more applicability now than it did when it was made 17 years ago. Our nation is developing, and in so doing grows more complex. Complex social and commercial structures on occasion result in complex, interrelated litigation. At the same time, the number of permanent justices on this court has remained static. As a practical matter, then, it has not been, nor will it likely be in the future, unusual for the same judge to hear interrelated matters involving one or more parties in common.[5]

We cannot conclude that the fact that the same judge hears different cases involving the same party or parties and related issues automatically results in an appearance of partiality under 4 F.S.M.C. 124(1). Such a holding would have the potential for gridlock in our court. To grant the relief requested by Hartman, who did not move to recuse the trial judge below, would be tantamount to holding that a party, at least as to cases involving related issues, is entitled as a matter of right to a different judge for each case even though no party objects, since failure to do so is potentially reversible error if raised later on appeal. Viewed practically, we question whether such a holding could be given effect in view of our limited resources. As the Jonas (II) court noted, "the judicial adjustments, expense and delay flowing from a judicial disqualification in Micronesia are substantial indeed." 1 FSM Intrm. at 317.

These considerations lead us to conclude that in the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), Justice Benson properly met his obligation to hear the case below. Accordingly, the appeal as to Hartman's issue E. is dismissed.

IV. Conclusion

For these reasons, the judgment of the trial court entered on April 14, 1999, is affirmed in its entirety. The appeal is dismissed, appellee Bank of Guam to recover its costs.

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^[1] On November 15, 1999, O'Sonis' appeal was dismissed for failure to file his notice of appeal within the 42 day time period mandated by Rule 4(a)(1) of the FSM Rules of Appellate Procedure. [See O'Sonis v. Bank of Guam, [2000] FMSC 30; 9 FSM Intrm. 356, 358 (App. 2000).]

^[2] The trial court found, and we agree, that "Samuel Hartman's case was incorrectly denominated a probate action (it is an action for accounting and for possession of specific funds)." Bank of Guam v. O'Sonis, [1999] FMSC 26; 9 FSM Intrm. 106, 111 (Chk. 1999).

^[3] It appears that there were other "War Funds" separate from the "1976 War Funds" at issue in this case. These other funds, amounting to approximately $13,000 and belonging to a corporation administered by Samuel Hartman, were taken by the administrator Picho Cheida, resulting in Civil Action No. 1993-1024.

^[4] The order in aid of judgment references a May 9 (as opposed to May 4), 1995 "order," while the writ references a May 9, 1997 (as opposed to 1995), "Order[]."

^[5] Although in a non-probate related context, a not uncommon instance of multiple cases involving the same party and interrelated issues heard before the same judge has been the business enterprise dissolution cases where the cases were not only heard by the same judge, but consolidated into a single proceeding. See, e.g., In re Kolonia Consumers Coop. Ass'n[2000] FMSC 1; , 9 FSM Intrm. 297 (Pon. 2000); Mid-Pacific Constr. Co. v. Senda, [1995] FMSC 20; 7 FSM Intrm. 124 (Pon. 1995); In re Island Hardware[1988] FMSC 14; , 3 FSM Intrm. 332 (Pon. 1988).