People of Rull ex rel Ruepong v MV Kyowa Violet [2007] FMSC 26; 15 FSM Intrm. 133 (Yap. 2007) (25 June 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2007] FMSC 26; 15 FSM Intrm. 133 (Yap 2007)

THE PEOPLE OF THE MUNICIPALITIES OF RULL AND
GILMAN, YAP STATE, by and through CHIEF
ANDREW RUEPONG, CHIEF THOMAS FALGNIN
and CHIEF JAMES LIMAR,
Plaintiffs,

vs.

M/V KYOWA VIOLET (O.N. 15005-85-CH), its
engines, masts, bowsprit, boats, anchors, chains,
cable, rigging, apparel, furniture, and all other
necessaries thereunto pertaining;
In Rem Defendant,

KYOWA SHIPPING CO., LTD., PACIFIC LINE
TRADING INC. (PANAMA), and TORITEC CO. LTD.,
In Personam Defendants.

CIVIL ACTION NO. 2003-3002

ORDER CONCERNING FEES AND COSTS

Dennis K. Yamase
Associate Justice

Decided: June 25, 2007

APPEARANCES:

For the Plaintiffs:
Daniel J. Berman, Esq.
Berman O’Connor & Mann
111 Chalan Santo Papa, Suite 503
Hagatna, Guam 96910

For the Defendants:
David Ledger, Esq. (pro hac vice)
Carlsmith Ball LLP
134 West Soledad Avenue, Suite 401
P.O. Box BF
Hagatna, Guam 96932-5027

[15 FSM Intrm 139]

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HEADNOTES

Attorney’s Fees; Judgments
When a fees and costs order was hand carried, along with some other papers, by a traveler to Yap and those other papers were received, as expected, by the court staff in Yap on the next day, March 23, 2007 and an inquiry the next day satisfied the court that the papers had been received and dealt with, but the fees and costs award did not come to the clerk’s attention, or into her possession, until June 5, and was then entered on June 6, 2007, the court can direct that the order awarding fees and costs be entered nunc pro tunc as of March 23, 2007, the day the court expected the order to be, and thought it had been, entered because a court may issue an order nunc pro tunc to supply a record of an action previously done but omitted from the record through inadvertence or mistake, to have effect as of the former date. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2007] FMSC 26; 15 FSM Intrm. 133, 134 (Yap 2007).

Attorney’s Fees; Civil Procedure - Class Actions; Jurisdiction
When an order awarded attorneys’ fees on the private attorney general theory and those fees are added to the judgment to be borne by the defendants, the issue of whether the fee award under the private attorney general theory will also stand as the fee award to plaintiffs’ counsel in a final distribution is an issue that is not now before the court and will not be before the court until a proposal for a final distribution is before the court. Until then, anything the court might say would be in the nature of an advisory opinion, and the court does not have the authority to issue advisory opinions. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2007] FMSC 26; 15 FSM Intrm. 133, 134-35 (Yap 2007).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On June 13, 2007, the plaintiffs filed their Motion for Reconsideration or Clarification of Ruling Awarding Fees and Costs, which asks the court to calculate the interest on the fee and cost award from the March 22, 2007 date it was signed instead of the June 6, 2007 date it was entered and asks the court to clarify whether the fee and cost award [People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2007] FMSC 39; 15 FSM Intrm. 53 (Yap 2007)] is the court’s final say on the matter or whether the court will honor the contingent fee agreement between the plaintiffs and their attorneys.

The court signed the order on March 22, 2007. The order was then hand carried, along with some other papers, by a traveler to Yap on that day’s flight. Those other papers were received, as expected, by the court staff in Yap on the next day, March 23, 2007. An inquiry the next day satisfied the court that the papers had been received and dealt with. Why or how the fees and costs award did not come to the clerk’s attention, or into her possession, until June 5, and was then entered on June 6, 2007, is a mystery.

The court therefore directs that the Order Awarding Fees and Costs be entered nunc pro tunc as of March 23, 2007, the day the court expected the order to be, and thought it had been, entered. A court may issue an order nunc pro tunc to supply a record of an action previously done but omitted from the record through inadvertence or mistake, to have effect as of the former date. Western Sales Trading Co. v. Ponape Federation of Coop. Ass’ns[1994] FMSC 44; , 6 FSM Intrm. 592, 593-94 (Pon. 1994).

The plaintiffs also ask whether the fees and costs award is the court’s final order on the fees and costs to be included in a final distribution order. The court makes the following observations:

[15 FSM Intrm 140]

If the court’s judgment is affirmed on appeal, the plaintiffs will file a request for fees and costs incurred on appeal. So the issue cannot be final in that sense.

Otherwise, the motion is premature. The order awarded attorneys’ fees on the private attorney general theory that are added to the judgment to be borne by the defendants. The issue of whether the fee award under the private attorney general theory will also stand as the fee award to plaintiffs’ counsel in a final distribution is an issue that is not now before the court and will not be before the court until a proposal for a final distribution is before the court. Until then, anything the court might say would be in the nature of an advisory opinion. The court does not have the authority to issue advisory opinions. Fritz v. National Election Dir., [2003] FMSC 37; 11 FSM Intrm. 442, 444 (App. 2003); Estate of Mori v. Chuuk, [2003] FMSC 43; 12 FSM Intrm. 24, 26 (Chk. 2003) (a court may not render an advisory opinion; a request for clarification that asks the court to opine on facts not before it, will be denied).

Now therefore it is hereby ordered that the Order Awarding Fees and Costs, entered June 6, 2007, be entered nunc pro tunc as of March 23, 2007, and it is further ordered that the request for clarification of the fee award is denied. It may be renewed at the proper time.

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