Federated States of Micronesia v Udot Municipality [2004] FMSC 51; 12 FSM Intrm. 622 (App. 2004) (3 September 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as FSM v Udot Municipality, [2004] FMSC 51; 12 FSM Intrm 622 (App. 2004)

FEDERATED STATES OF MICRONESIA,
DEPARTMENT OF FINANCE AND ADMINISTRATION, MAYOR LIWIS OS,
in his capacity as Mayor of Polle, TOLENSOM AUTHORITY,
JAMES FRITZ, in his capacity as Executive Director of Chuuk State Committee on Improvement Projects
Appellants

vs.

UDOT MUNICIPALITY
Appellee

APPEAL CASE NO. C2-2001

ORDER GRANTING REHEARING

Decided: September 3, 2004

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

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

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HEADNOTES

Appellate Review - Rehearing
A court has the power to enlarge the time to petition for rehearing and to modify a decision although the time for rehearing has expired, and sometimes may consider later petitions for rehearing filed even after rehearing has been earlier denied. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624 (App. 2004).

Appellate Review - Rehearing
A petition for rehearing can be granted only if the court had overlooked or misapprehended a point of law or fact. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624 (App. 2004).

Appellate Review - Rehearing
Ordinarily, the court would require an answer to the petition for rehearing, but when the matter on which rehearing is sought was also previously raised in motions no response or opposition to the motions was received, the court may chose not to request an answer to this petition. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624 (App. 2004).

Appellate Review - Rehearing
A petition for rehearing will be granted when it has been shown that the court has overlooked or misapprehended a point of law or fact, and when the court concludes that it has overlooked something it will grant the petition for rehearing solely to address that issue. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624 (App. 2004).

Attorney, Trial Counselor and Client - Fees
The equitable private attorney general doctrine allows a prevailing party to recover attorneys’ fees where the party vindicates an important right that affects the public interest, confers a significant benefit upon the general public or a large number of people, and requires private enforcement. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624 n.1 (App. 2004).

Attorney, Trial Counselor and Client - Fees
When the appellate court has already held that the private attorney general doctrine will apply in the FSM, provided that the criteria are strictly met and when it has concluded that the criteria were met and upheld the trial court’s award of attorneys’ fees based on the private attorney general theory, and when the appellate level dealt with the same case, criteria, and circumstances as the trial court, the appellate court may conclude that attorney’s fees for the appeal should be awarded based on the private attorney general theory and remand the case to the trial court for a determination of the amount of attorney’s fees and costs to be awarded. A trial court attorney’s fees award based on the private attorney general theory would be diminished if the party could not also defend the case at the appellate level. FSM v. Udot Municipality, [2004] FMSC 51; 12 FSM Intrm. 622, 624-25 (App. 2004).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On September 26, 2003, the Appellee Udot Municipality ("Udot") filed a Petition for Rehearing by Appellee Udot Municipality. Udot asks us to address and award attorney’s fees, including travel costs of $299.50, for work performed on this appeal.

Udot, in its brief, asked for an award of its costs and attorney’s fees in this appeal, but we overlooked the attorney’s fees issue for the appellate level work. The court only addressed the issue based on the appellants’ challenge to the trial court’s award of attorney’s fees based on the private attorney general theory.

We entered our decision on August 6, 2003. The mandate, issued on September 15, 2003, included a costs award of $602.73. Neither our opinion, nor the mandate, addressed the attorney’s fees for the appeal work.

On August 18, 2003, Udot filed in the appellate division a Motion for Costs and Attorneys’ Fees pursuant to the August 6, 2003 decision. This motion sought fees for all work done on this case, both appellate and trial court work from September 6, 2001 to August 18, 2003. Additionally, it seeks costs incurred since September, 2001, in the amount of $902.23. The motion for attorneys’ fees was made jointly and severally against all the defendants. The motion for costs was made against all defendants aside from the Federated States of Micronesia and its Department of Finance and Administration. No response or opposition was received to this motion.

On September 26, 2003 Udot filed in the appellate division an Amended Motion for Costs and Attorney’s Fees, pursuant to the August 6, 2003 decision. This amended motion supplemented the earlier Motion for Costs and Attorneys’ Fees. It seeks appellate fees, along with additional appellate fees incurred since August 18, 2003. No response or opposition was received to this amended motion.

This petition for rehearing is filed pursuant to FSM Appellate Rule 40(a). Udot asserts that the issue did not arise until the issuance of the mandate which did not address the issues raised in this petition.

Udot filed its petition for rehearing beyond the fourteen day deadline for seeking a rehearing. FSM App. R. 40(a). A court has the power to enlarge the time to petition for rehearing and to modify a decision although the time for rehearing has expired, and sometimes may consider later petitions for rehearing filed even after rehearing has been earlier denied. Nena v. Kosrae (III), [1994] FMSC 33; 6 FSM Intrm. 564, 567-68 (App. 1994).

A petition for rehearing can be granted only if the court had overlooked or misapprehended a point of law or fact. Iriarte v. Etscheit, [1998] FMSC 6; 8 FSM Intrm. 263, 264 (App. 1998); Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 18 (App. 1987); Carlos v. FSM, 4 FSM Intrm. 32, 33 (App. 1989). Udot contends that the court overlooked its request for attorney’s fees and costs for work at the appellate level. Udot’s request was in its Appellee’s brief that was filed on June 13, 2002.

Ordinarily, the court would require an answer to the petition for rehearing, FSM Appellate Rule 40(a), but since these matters were also raised in Udot’s August 18, 2003 Motion for Costs and Attorneys’ Fees and September 26, 2003 Amended Motion for Costs and Attorney’s Fees, and since no response or opposition to these motions were received, the court will not request an answer to this petition.

A petition for rehearing will be granted when it has been shown that the court has overlooked or misapprehended a point of law or fact. FSM App. R. 40(a). We conclude that we overlooked Udot’s requests for attorney’s fees and costs for appellate level work and therefore grant the petition for rehearing solely to address this issue.

We have already held that the private attorney general doctrine[1] will apply in the FSM, provided that the criteria set forth in Damarlane v. United States, [1997] FMSC 33; 8 FSM Intrm. 45 (App. 1997) are strictly met and when it is necessary for parties to hire private attorneys to enforce important rights of significant societal and public importance. We further concluded that the criteria set forth in Damarlane were met and upheld the trial court’s award of attorneys’ fees based on the private attorney general theory.

At the appellate level, we are dealing with the same case, criteria, and circumstances as in the trial court matter. Therefore, the criteria were also met in this appeal. Furthermore, a trial court attorney’s fees award based on the private attorney general theory would be diminished if Udot could not also defend the case at the appellate level.

For these reasons, we conclude that Udot’s attorney’s fees for this appeal should be awarded based on the private attorney general theory. We, therefore, remand this case back to the trial court for a determination of the amount of attorney’s fees and costs to be awarded for Udot’s work on the appeal. Cf. Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 18; 7 FSM Intrm. 664, 674 (App. 1996).

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^[1] The equitable private attorney general doctrine allows a prevailing party to recover attorneys’ fees where the party vindicates an important right that affects the public interest, confers a significant benefit upon the general public or a large number of people, and requires private enforcement.