Ruben v Petewon [2005] FMSC 40; 13 FSM Intrm. 383 (Chk. 2005) (1 September 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Ruben v Petewon, [2005] FMSC 40; 13 FSM Intrm. 383 (Chk. 2005)

HERSIN RUBEN and MORIA RUBEN,
Plaintiffs,

vs.

JOHN PETEWON, individually,
and in his capacity as Associate Justice of the Chuuk State Supreme Court, and CHONSY HARTMAN,)
Defendants.

CIVIL ACTION NO. 2005-1018

ORDER GRANTING PRELIMINARY INJUNCTION

Dennis K. Yamase
Associate Justice

Hearing: August 19, 2005
Decided: September 1, 2005

APPEARANCES:

For the Plaintiff:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:
John Petewon
P.O. Box 187
Weno, Chuuk FM 96942

For the Defendant (Hartman):
Fredrick Hartman
P.O. Box 222
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Civil Procedure - Injunctions
When exercising its broad discretion in considering whether to grant a preliminary injunction, the court looks to four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the moving party, 3) the balance of possible injuries or inconvenience to the parties which would flow from granting or denying the relief, and 4) any impact on the public interest. The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 386 (Chk. 2005).

Evidence - Judicial Notice
The court may take judicial notice of a fact not subject to reasonable dispute in that it is either 1) generally known within the trial court’s territorial jurisdiction or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. The court must take judicial notice if requested by a party and supplied with the necessary information, but when the existence of the documents is disputed by the plaintiffs and the defendants have not provided the court with the information necessary to take judicial notice of it, such as either copies of the filed document or copy of the docket book showing that such a document was filed, the court will decline to take judicial notice. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 387 n.1 (Chk. 2005).

Courts - Recusal
By state law, a motion to disqualify a justice must be referred to another justice for ruling. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 388 (Chk. 2005).

Judgments - Relief from Judgment
There is no time limit on relief from a void judgment. The reason for this is obvious. If a judgment is void when issued, it is always void. When relief is sought from a void judgment, a court has no discretion but must grant relief from judgment. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 389 (Chk. 2005).

Appellate Review - Stay - Civil Cases; Courts - Judges
No Chuuk state justice may hear or decide an appeal of a matter heard by the justice in the trial division, but the issuance of a stay is a procedural matter that does not require the justice issuing it to hear or decide the appeal. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 389 (Chk. 2005).

Civil Procedure - Injunctions; Judgments
Civil Rule 71 only permits enforcement of orders and judgments against non-parties "when obedience to an order may be lawfully enforced against a person who is not a party." The key word here is "lawfully." Ordinarily a judgment may be enforced only against a party. However, an injunction may be enforced upon parties to the action, their officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 389 (Chk. 2005).

Civil Procedure - Injunctions; Constitutional Law - Due Process; Judgments
In the case of an injunction, non-parties who are persons who are the defendant’s "officers, agents, servants, employees and attorneys," or "persons in active concert or participation" with the defendant and successors to a party, are the only non-parties against whom judgments and orders may be lawfully enforced, that is, enforced without violating the non-party’s constitutional right to due process and Rule 71. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 389 (Chk. 2005).

Civil Procedure - Injunctions; Constitutional Law - Due Process
The general rule is that orders cannot be enforced against non-parties without violating the non-parties’ constitutional rights to due process, and if an order can lawfully be enforced against someone it is because either that person is a party or it is an injunction being enforced and that person is a party’s "officers, agents, servants, employees and attorneys," or a person "in active concert or participation" with a party. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 390 (Chk. 2005).

Civil Procedure - Injunctions; Civil Procedure - Intervention
While it is entirely likely that non-parties could succeed on the merits of an action seeking an injunction without ever being parties in another case with a judgment because failure to join an indispensable party may subject a judgment to collateral attack, there are those rare cases where intervention is timely under Rule 24 even though it is after entry of judgment. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 390 (Chk. 2005).

Civil Procedure - Injunctions
A holder of a certificate of title derived from another certificate of title that was litigated has a good chance of success on the merits in a dispute over title. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 390 (Chk. 2005).

Civil Procedure - Injunctions
To have a certificate of title to and one judgment for a property in their favor, but to have another judgment enforced against them which they are told they cannot challenge because they are not parties to it and that they cannot be made parties and never had notice or an opportunity to be heard before that other judgment was originally entered, and to now have no opportunity to be heard and contest either the merits or the enforcement of that other judgment, is an irreparable injury. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 390 (Chk. 2005).

Courts - Judges
A judge’s failure to rule, that is, his failure to exercise his discretion is itself an abuse of the judge’s discretion because a court may abuse its discretion by an unexplained, lengthy delay or by failure to exercise its discretion within a reasonable time. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 390 n.2 (Chk. 2005).

Civil Procedure - Injunctions
When to disturb the status quo now would only cause irreparable harm the movants and little harm would come to the defendant from maintaining the status quo and any damage to the defendant would be compensable by reasonable money damages, the balance of the injuries weighs in the movants’ favor. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 391 (Chk. 2005).

Civil Procedure - Injunctions
The public interest factor weighs in the movants’ favor since the impact on the public interest encourages an orderly judicial process in which all interested parties may be heard, their views properly considered, and their rights honored and when injunctive relief would advance that public interest and allow the matter to proceed in an orderly and deliberative fashion in the state court appellate division. Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 391 (Chk. 2005).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On August 19, 2005, pursuant to notice this came before the court on the plaintiffs’ Application for Preliminary Injunction, filed July 21, 2005. The plaintiffs ("the Rubens") appeared by counsel and in person. Defendant Associate Justice John Petewon appeared in person, individually, and in his capacity as an Associate Justice of the Chuuk State Supreme Court. Defendant Chonsy Hartman appeared in person and through counsel whose motion to appear pro hac vice was granted at the hearing’s start.

After a day of testimony during which the Rubens presented their case in chief, sufficient evidence was presented that would justify the issuance of a preliminary injunction in that there would be irreparable harm to the Rubens if the injunction were not granted, that on balance any harm to the defendants was outweighed by the harm to the Rubens, that the Rubens’ claim was not frivolous and has a fair likelihood of success on the merits, and that the public interest favored the injunction’s issuance. The court’s reasons follow.

I.

When exercising its broad discretion in considering whether to grant a preliminary injunction, the court looks to four factors: 1) the likelihood of success on the merits of the party seeking injunctive relief, 2) the possibility of irreparable injury to the moving party, 3) the balance of possible injuries or inconvenience to the parties which would flow from granting or denying the relief, and 4) any impact on the public interest. Ponape Enterprises Co. v. Bergen, [1993] FMSC 52; 6 FSM Intrm. 286, 288 (Pon. 1993). The object of a preliminary injunction is to preserve the status quo pending the litigation on the merits. Id.

II.

A brief outline of the undisputed facts underlying this case follows.

Sometime in the early 1950's, the Wito Clan was adjudged owner of land known as Unupuku, on Weno, in a High Court case.

In 1959, Tiu Killion, father of defendant Chonsy Hartman, occupied Unupuku, claiming to have bought the land from one Nimuk.

In 1961, the predecessor to Chuuk state government leased the land from the Wito Clan and relocated or evicted Tiu Killion.

The land registration process for the area including Unupuku was begun in 1976, and, after lengthy and detailed procedures, the Land Commission issued a certificate of title to the Wito Clan as owners of Unupuku (Lot 040-A-17), an area of 4,461 square meters, on July 15, 1981. An appeal of this determination was dismissed in 1982, as was a 1991 case in the Chuuk State Supreme Court. The 1991 case was dismissed on the ground that the matter had been fully litigated and was res judicata.

In March, 1997, the Wito Clan sold 1,598 square meters of Unupuku to the Rubens, and a certificate of title for that portion (redesignated Lot 040-A-41) was issued to them on April 8, 1999.

On March 16, 1998, Chonsy Tiu Hartman sued, in CSSC Civil Action No. 64-98, the State of Chuuk seeking a declaratory judgment that she, as successor to Tiu Killion, was the owner of Unupuku. No one else, not even the holder of the 1981 certificate of title to Unupuku, was named as a defendant. The state failed to respond, and on August 20, 1998, a default judgment was therefore entered in Hartman’s favor.

The state finally terminated its lease and released Unupuku to the landowners holding certificates of title for it in April, 2000.

In 2000, two more cases were filled concerning Unupuku. One by the Wito Clan against Hartman and the state (CSSC Civil Action No. 36-2000) and the other by the Rubens against Samuel and Chonsy Hartman (CSSC Civil Action No. 229-2000) both cases seeking to quiet title to their respective portions of Unupuku. The Rubens also attempted to intervene in CSSC Civil Action No. 64-98.

In July, 2002, Chief Justice Soukichi Fritz ordered that all three cases be consolidated. (The trial judge in Civil Action No. 64-98 had asked that the case be reassigned from him.) The consolidated cases were assigned to a Special Trial Justice. After notice and hearing, that special trial justice ruled, in a decision entered March 23, 2004, that the judgment in 64-98 was void; vacated that judgment and dismissed 64-98 with prejudice; granted the Rubens judgment against Chonsy and Samuel Hartman for the portion of Unupuku that the Rubens claimed; granted the Wito Clan "judgment against Chonsy Hartman, and those claiming by or through her, to that land commonly known as Unupuku"; and ordered that "any and all further proceedings, if any there are, regarding claims to any portion of the land commonly known as Unupuku must be brought before the Chuuk State Land Commission." Hartman v. Chuuk, [2004] FMCSC 2; 12 FSM Intrm. 388, 404 (Chk. S. Ct. Tr. 2004). He also ordered that judgment be entered accordingly. Id. That judgment was entered on April 6, 2004. No one appealed the decision and judgment.

On January 18, 2005, Justice Petewon issued a Notice scheduling CSSC Civil Action No. 64-98[1] for hearing on January 27, 2005. On January 25, 2005, the Rubens’ counsel, who resides and has his office on Pohnpei, moved for a continuance.

On February 1, 2005, Chuuk State Supreme Court Associate Justice John Petewon issued a Notice of Trial scheduling trial in CSSC Civil Action No. 64-98 on February 7, 2005. The proceeding went ahead without the presence of Rubens’ counsel. On February 14, 2005, the Rubens filed a motion to reconsider.

On March 22, 2005, Justice Petewon issued an order reinstating the original default judgment in 64-98, vacating all later orders in that case (apparently including Chief Justice Fritz’s consolidation order), but purporting not to affect the contrary judgments in the two cases that had been consolidated with 64-98.

On March 23, 2005, Hartman delivered a letter demanding that the Rubens vacate Unupuku because the March 22, 2005 order had not been appealed and asserting that the Rubens were liable for damages of $1,786.326.00. Also on March 23, 2005, Hartman filed a motion seeking an order in aid [of judgment] and asking that the court hold the Rubens in contempt. (That motion’s caption names the Rubens and the Wito Clan as party-intervenors in 64-98. Ex. 19.)

On March 29, 2005, the Rubens filed a notice of appeal from Justice Petewon’s March 22, 2005 order.

On April 28, 2005, Justice Petewon set a hearing on Hartman’s request for an order in aid of judgment for May 12, 2005. The Rubens filed a motion to recuse Justice Petewon on May 11, 2005.

At the May 12, 2005 hearing Justice Petewon denied the motion to recuse because it was not a motion to disqualify (which had to be referred to another judge under the Chuuk Judiciary Act) and informed the Rubens and the Wito Clan representative {the parties with certificates of title to Unupuku) that they were not parties to 64-98 and could not be joined as parties because judgment had already been entered in 64-98.

On May 18, 2005, the Rubens filed a motion to disqualify Justice Petewon. By state law, a motion to disqualify a justice must be referred to another justice for ruling. Chk. S.L. No. 190-08, § 22(5).

On May 19, 2005, a single justice of the Chuuk State Supreme Court appellate division issued a stay of trial division proceedings in 64-98ing the outcome of the appellate process.

On May 20, 2005, Justice Petewon held held a hearing at which he announced that the stay did not apply and continued the matter to May 23, 2005. On May 23, 2005, Justice Petewon ruled that the motion to disqualify did not have to be referred to another justice because the Rubens were not parties.

Also on May 23, 2005, the Rubens filed in the Chuuk State Supreme Court appellate division a petition for a writ of prohibition directed to Justice Petewon.

On May 26, 2005, the Rubens filed a notice of appeal from Justice Petewon’s May 12, and May 23, 2005 orders and from a written order dated May 17, 2005.

On July 15, 2005, Justice Petewon, in response to Hartman’s July 13, 2005 motion for an order to show cause, issued an order for the Rubens to show cause why they should not be held in contempt for their failure to obey the judgment and orders in 64-98. That hearing was held on August 2, 2005 and resulted in a written order that Unupuku be surveyed on September 7, 2005.

Not all of the motions filed by the Rubens are listed above. Justice Petewon did not explicitly rule on most of the motions filed.

III.

The Rubens’ complaint seeks injunctive and declaratory relief against all defendants as to the parties’ rights and liabilities, permanently enjoining Justice Petewon from taking any further action in 64-98; seeks a judgment against Justice Petewon for the violation of their civil rights, with attorney’s fees and costs; seeks a judgment against Hartman collaterally attacking and setting aside the August 20, 1998 default judgment in 64-98; and a judgment against Hartman for abuse of process. The Rubens’ application for a preliminary injunction asks that Justice Petewon be enjoined from further action in 64-98 until the appellate proceedings have concluded.

A. Plaintiffs’ Likelihood of Success on the Merits

The defendants argued that the Rubens have no likelihood of success on the merits because the special trial justice granted relief from judgment in Civil Action No. 64-98 more than a year after judgment was entered in that case and because Chuuk State Supreme Court Civil Procedure Rule 60(b) only permits relief from judgment to be granted within one year of entry of judgment.

This is an incorrect statement of the law. There are six subsections to Rule 60(b). The rule provides that a motion for relief from judgment "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Chk. Civ. R. 60(b). Reasons (4), (5), and (6) have no such one-year time limit. The Special Trial Justice clearly granted relief from judgment for reason number (4), that is, on the ground that the judgment was void. Hartman v. Chuuk, [2004] FMCSC 2; 12 FSM Intrm. 388, 398-99 (Chk. S. Ct. Tr. 2004). There is no time limit on relief from a void judgment. The reason for this is obvious. If a judgment is void when issued, it is always void. When relief is sought from a void judgment, a court has no discretion but must grant relief from judgment. See Amayo v. MJ Co., [2001] FMSC 32; 10 FSM Intrm. 371, 377 (Pon. 2001) (except for void judgments under FSM Rule 60(b)(4) (similar to Chuuk Rule 60(b)) court’s sound discretion exercised for relief from judgment).

Justice Petewon further contends that he is free to ignore the stay issued by the Chuuk State Supreme Court appellate division since it is, in his view, unconstitutional because the stay was signed by the justice who entered the original default judgment in 64-98. Without regard to the impropriety of a trial division justice reviewing, overruling, or ignoring an appellate division order on his own behest, that contention does not bear scrutiny. The Chuuk Constitution provides that "[n]o Justice may hear or decide an appeal of a matter heard by such Justice in the trial division . . . ." Chk. Coart. VII, §&167; 5. The issuance of a is a ps a procedural matter that does not require the justice issuing it to "hear or decide" the appeal. There is no indication that the single justice intends to hear or decide the matter ore a member of the panel whel when it comes before an appellate panel for hearing and decision. If he were to do so, an aggrieved party must then seek relief in either the Chuuk State Supreme Court appellate division or in an appeal from that court.

The defendants further contend that the Rubens have no likelihood of success on the merits because the Rubens are not parties in Civil Action No. 64-98 but that Justice Petewon can enforce against the Rubens (and the Wito Clan) the original default judgment entered only against the state and hold them in contempt if they do not comply. For this proposition they rely on the following language in Chuuk State Supreme Court Civil Procedure Rule 71: "when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if he were a party." Chk. Civ. R. 71. The defendants misread and misunderstand this rule. It only permits enforcement of orders and judgments against non-parties "when obedience to an order may be lawfully enforced against a person who is not a party." There has been no showing of any basis on which the Rubens, if they are non-parties, are non-parties against whom "obedience to an order may be lawfully enforced." The key word here is "lawfully."

Ordinarily a judgment only may be enforced against a party. However, an injunction may be enforced upon parties to the action, their officers, agents, servants, employees and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3033,77 (2d ed. 1997) (disc(discussing U.S. Federal Rule of Procedure 71, which is identical to and from which Chuuk Civil Procedure 71 is derived). The default judgment in 64-98 is a determination of ownership and not an inan injunction. Even if it were an injunction, the Rubens are not the defendant state’s "officers, agents, servants, employees and attorneys," or "persons in active concert or participation" with the state. Those, and successors to a party, are the only non-parties against whom judgments and orders may be lawfully enforced, that is, enforced without violating the non-party’s constitutional right to due process and Rule 71. If the Rubens are non-parties, they are thus not the sort of non-parties to which Rule 71 applies and allows enforcement of court orders and judgments.

The general rule is that orders cannot be enforced against non-parties without violating the non-parties’ constitutional rights to due process, and if an order can lawfully be enforced against someone it is because either that person is a party or it is an injunction being enforced and that person is a party’s "officers, agents, servants, employees and attorneys," or a person "in active concert or participation" with a party. Therefore the Rubens’ likelihood of success weighs in their favor because it appears they may will be able to show either that they are parties whose constitutional civil rights to due process are being violated or they are non-parties against whom orders and judgments are unlawfully being enforced in violation of their civil rights.

Lastly, the defendants contend that the Rubens cannot succeed on the merits because they cannot intervene in 64-98 since any intervention after the original default judgment was entered would be untimely and Chuuk Civil Procedure Rule 24 requires a motion to intervene to be timely. While it is entirely likely that the Rubens could succeed on the merits of this action without ever being parties in 64-98, see, e.g., Nahnken of Nett v. United States (III), [1994] FMSC 3; 6 FSM Intrm. 508, 517 (Pon. 1994) (failure to join an indispensable party may subject a judgment to collateral attack), the court notes that there are those rare cases where intervention is timely under Rule 24 even though it is after entry of judgment. In re Engichy[2003] FMSC 26; , 11 FSM Intrm. 555, 557 (Chk. 2003) (intervention may be allowed after a final judgment or decree when it is necessary to preserve some right which cannot otherwise be protected); Aggregate Sys., Inc. v. FSM Dev. Bank, [2003] FMSC 82; 11 FSM Intrm. 514, 518 (Chk. 2003); Moses v. Oyang Corp., [2001] FMSC 14; 10 FSM Intrm. 273, 276 (Chk. 2001); see generally 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1916444-56 (2d ed. 1986).

The chronology of events shows that the factor of likelihood of success on the merits wein the Rubens’ favor and the defendants’ arguments to the contrary are unavailinailing. This is true whether the merits are the Rubens’ claim to own a portion of Unupuku or their civil rights claims. A holder of a certificate of title derived from another certificate of title that was litigated has a good chance of success on the merits in a dispute over title.

B. Irreparable Injury to the Plaintiffs

The Rubens have built a store on property they bought from a holder of a certificate of title to that property, and are running a business there. To be deprived of this while the matter proceeds through the appellate process would cause them irreparable injury. To have a certificate of title to and one judgment for that property in their favor, but to have another judgment enforced against them which they are told they cannot challenge because they are not parties to it and that they cannot be made parties and never had notice or an opportunity to be heard before that other judgment was originally entered, and to now have no opportunity to be heard and contest either the merits or the enforcement of that other judgment, is also irreparable injury.

C. Balance of Possible Injuries between the Parties

The balance of possible injuries between the parties weighs heavily in the Rubens’ favor. They occupy and use "their" portion of Unupuku. Without an injunction they will be irreparably injured.[2]
Defendant Hartman was relocated from that land in 1961. In light of Hartman’s long absence from Unupuku and her alleged damages of $1,786,326 (they include $1.2 million in "punitive" damages), the balance weighs in the Rubens’ favor. To disturb the status quo now would only harm the Rubens. Little harm comes to defendant Hartman from maintaining the status quo. Any damage to Hartman would be compensable by reasonable money damages.

D. Impact on the Public Interest

This factor also weighs in the Rubens’ favor since the impact on the public interest encourages an orderly judicial process in which all interested parties may be heard, their views properly considered, and their rights honored. Injunctive relief would advance that public interest and allow the matter to proceed in an orderly and deliberative fashion in the Chuuk State Supreme Court appellate division in order that there be a just resolution of the matter.

IV.

Accordingly, the Rubens have made a showing justifying their right to a preliminary injunction preserving the status quo until the matter can be litigated on the merits. No bond will be required, and the defendants did not ask that one be required if a preliminary injunction issued. Their motion for a preliminary injunction is therefore granted. A preliminary injunction enjoining the defendants from taking any further action in Civil Action No. 64-98 until the proceedings initiated in the Chuuk State Supreme Court appellate division have concluded issues herewith.

* * * *

---

^[1] The defendants ask that the court take judicial notice of a July 14, 2004 assignment of Civil Action No. 64-98 to Justice Petewon by Acting Chief Justice Machime O’Sonis and of a purported December 1, 2004 motion for relief from judgment by Hartman. The Rubens object to this on the ground that the were never served copies of these purported filings, that the August 19, 2005 hearing is the first they have heard of their existence, and that, in light of Acting Chief Justice O’Sonis’s testimony that he would not knowingly assign a case that had been dismissed with prejudice to a judge, their propriety or existence is suspect. Exhibit 17, introduced by the plaintiffs and admitted by the court, is a July 15, 2004 letter from Acting Chief Justice O’Sonis informing Justice Petewon that four cases, including 64-98, were being reassigned to him.

The court may take judicial notice of a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FSM Evid. R. 201(b). The court must "take judicial notice if requested by a party and supplied with the necessary information." FSM Evid. R. 201(d).

The existence of Hartman’s Rule 60(b) motion is disputed. The defendants have not provided the court with the information necessary to take judicial notice of it, such as either copies of the filed document or copy of the docket book showing that such a document was filed. The court therefore declines to take judicial notice of the Rule 60(b) motion. In light of the totality of the circumstances, even if the court were to take judicial notice, it would not change this decision on the Rubens’ preliminary injunction motion.

^[2] The Rubens also complain that they are harmed by Justice Petewon’s failure to rule, one way or the other, on the majority of motions they filed. The court notes that many of these motions are ones on which a trial judge may exercise his discretion (and some could be considered denied without reason when the Justice Petewon issued a contrary order). However, the court also notes that failure to rule, that is, his failure to exercise his discretion is itself an abuse of the judge’s discretion. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 147 (App. 2002) ("a court may abuse its discretion by an unexplained, lengthy delay or by failure to exercise its discretion within a reasonable time"); In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997) ("The failure to exercise discretion is an abuse of the discretion.").