AHPW, Inc v Pohnpei [2008] FMSC 22; 15 FSM Intrm. 520 (Pon. 2008) (25 February 2008)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 1999-053

AHPW, INC.,
Plaintiff,

vs.

STATE OF POHNPEI,
Defendant.
___________________________________

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Decided: February 25, 2008

APPEARANCES:

For the Plaintiff: Douglas F. Cushnie, Esq.
P.O. Box 949
Saipan, MP 96950

For the Defendant: L.M. Bacalando, Jr., Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Mandate; Interest and Usury; Judgments

If a money judgment in a civil case is affirmed, whatever interest is allowed by law will be payable from the date the judgment was entered in the court appealed from, but if a judgment is modified or reversed with a direction that a judgment for money be entered in the court appealed from, the mandate must contain instructions with respect to allowance of interest. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 523 (Pon. 2008).

Interest and Usury; Judgments

A prevailing party should not be deprived of statutory interest accrued on a judgment simply because further court proceedings become necessary to collect that judgment. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 523 (Pon. 2008).

Judgments

When the original judgment with respect to trebling the pepper business lost profits damages was ultimately correct in its entirety as the same amount was awarded by the later judgment on remand, that leads to the conclusion that the trebled damages were fully ascertained as of the date of the original judgment. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 524 (Pon. 2008).

Interest and Usury; Judgments

The FSM Supreme Court is reticent to issue an inequitable decision denying post-judgment interest that would punish the prevailing party and possibly encourage losing parties to instigate post-judgment litigation for the purpose of lessening its eventual financial liability, a particularly relevant concern in a case involving a substantial award with the potential to accrue substantial interest. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 525 (Pon. 2008).

Interest and Usury; Judgments

A judgment should not earn interest if it 1) is not supported by applicable law, 2) needs further factual/evidentiary findings for its support, and/or 3) is ultimately reversed as to the underlying finding of liability. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 527 (Pon. 2008).

Interest and Usury; Judgments

The equitable purpose of post-judgment interest is to compensate the successful plaintiff for being deprived of the compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant. A judgment lacking a sufficient legal or evidentiary basis or requiring further factual development should not accrue interest. A legally sufficient judgment that is basically sound but on remand is modified to include additional clarification or explanation without consideration of new evidence or the making of additional findings should accrue interest. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 528 (Pon. 2008).

Interest and Usury; Judgments

Equitable principles favor calculating the interest in a manner that more fully compensates the prevailing party so that once a final judgment has been entered as to liability and damages, vacation of the damage award on appeal and issuance of an order requiring further proceedings to explain the basis for the recoverable damages will not prevent accrual of post-judgment interest on the amount common to the earlier and later judgments from the date the original judgment was entered. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 528 (Pon. 2008).

Interest and Usury; Judgments

When the appellate division affirmed the underlying liability as well as the base award for the pepper business lost profits and, although the appellate division vacated the trebled portion of the award, it was not vacated for legal or evidentiary insufficiency and it did not request entry of any additional findings, but rather requested further explanation as to why the trial court applied the statute to the damages at issue and explicitly allowed for reinstatement of the trebled damages; and when, on remand, the trial court explained that the statute compelled a mandatory trebling of damages and reinstated the same award for a second time without the consideration of any additional evidence or the making of any additional factual findings with respect to the award of pepper business lost profits damages, the first and second judgments in this matter are identical, and both are supported by the exact same evidentiary and legal basis, and since the trebled award for the pepper business lost profits damages was fully ascertainable on the date the first judgment was entered, interest on the award will accrue from that date. AHPW, Inc. v. Pohnpei, [2008] FMSC 22; 15 FSM Intrm. 520, 528 (Pon. 2008).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

Judgment in Plaintiff's favor was originally entered in this matter on July 8,2004, and was subsequently appealed by both parties. Upon remand from the FSM Appellate Division, this Court again entered judgment in Plaintiffs favor on April 14, 2006, and this judgment became final when it was not appealed. On April 30, 2007, Plaintiff filed a Motion for Order in Aid of Judgment. On July 5,2007, Defendant filed a Motion for the Court to Issue an Order Clarifying Amount of Judgment, raising a question with regard to the calculation of post-judgment interest. On August 8, 2007, a telephonic status conference was held, after which the Court concluded that a hearing on Plaintiff's Motion for Order in Aid of Judgment would not be worthwhile until the issue of post-judgment interest was resolved. Accordingly, the Court ordered the parties to submit briefs on the post-judgment interest issue. Both parties submitted briefs to the Court and the question with regard to calculating post-judgment interest is now ripe for determination.

I. Background

On July 8, 2004, following trial of this matter, this Court entered judgment awarding, in pertinent part, $225,448.00 in lost profits to the Plaintiff for Defendant's damage to Plaintiff's pepper business in violation of 32 F.S.M.C. 302(3), which prohibits anticompetitive business practices. Furthermore, this Court found: "This amount is subject to trebling under 32 F.S.M.C. 306(2), for a total of $676,344.00."

Both parties appealed this Court's July 8, 2004 decision to the FSM Appellate Division, which issued its Opinion on January 16, 2006, along with a correlating Mandate on February 7, 2006. The Appellate Division affirmed both the Defendant's liability for damaging Plaintiff's pepper business and the award of lost profits damages in the amount of $225,448.00. With regard to the trebling of the lost profit damages, the Appellate Division held:

We think that the trial court should have stated some reason for trebling damages other than just the statute allows it. We do not think "compelling" justification is needed or required.

The trebling of damages is therefore vacated. It is remanded to the trial court for it to determine whether, based on the facts before it, multiple damages should be awarded, and, if so, to put on the record its reasons for doing so.

Pohnpei v. AHPW, Inc., 14 FSM Intern. 1, 19 (App. 2006). In its Mandate, the FSM Appellate Division gave the following instruction to this Court:

[T]hat the trebling of those damages ought to be vacated and remanded to the trial court for it to express its reasons, other than merely citing the statute allowing it, for multiplying the award and that the trial court may reinstate treble damages, or some lesser amount, after putting its reasoning on the record[.]

On April 14, 2006, this Court entered its judgment on remand, in which it again awarded treble damages in the same amount of $676,344.00. In its accompanying memorandum, this Court held, in pertinent part, that once a party seeks and successfully establishes the right to damages pursuant to 32 F.S.M.C. 301 et seq., 32 F.S.M.C. 306(2) "impose[s] a positive duty to treble damages, not a discretionary power to do so." [AHPW, Inc. v. Pohnpei, [2006] FMSC 14; 14 FSM Intrm. 188, 191 (Pon. 2006).] Neither party appealed the judgment of April 14, 2006.[1]

II. Issue

The Court is now asked to determine the point in time that post-judgment interest began to accrue on the pepper business lost profits award. Defendant contends that post-judgment interest began to accrue on the award when this Court issued its judgment on remand on April J 4, 2006. Plaintiff contends that post-judgment interest began to accrue on the award when the Court issued its original judgment on July 8, 2004.

III. Discussion

The primary applicable statute is 6 F.S.M.C. 1401, which reads: "Every judgment for the payment of money shall bear interest at the rate of nine percent a year from the date it is entered." Furthermore, Rule 37 of the FSM Rules of Appellate Procedure is cited by Plaintiff as pertinent to the issue at hand:

Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the court appealed from. If a judgment is modified or reversed with a direction that a judgment for money be entered in the court appealed from, the mandate shall contain instructions with respect to allowance of interest.

In the present matter, however, the Appellate Division did not affirm, reverse or modify the trebled pepper business lost profits damages, nor did it direct that judgment for a certain sum of money be entered. Rather, the Appellate Division vacated and remanded the trebling of damages back to this Court with instructions to "express the reasons" for trebling damages and then either "reinstate treble damages, or some lesser amount." It appears that this particular instruction falls outside of the purview of Rule 37, as the Appellate Division offered no instruction with respect to interest.

The Court was able to identify one relevant authority within this jurisdiction addressing the operation of 6 F.S.M.C. 1401, Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 18; 7 FSM Intrm. 664 (App. 1996), as cited by the Plaintiff. In Senda, a successful civil action was initiated for the purpose of collecting a judgment entered in a previous civil action. In determining that post-judgment interest pursuant to 6 F.S.M.C. 1401 began accruing on the date the first judgment was entered, the Appellate Division held: "We do not see why a creditor who has obtained a judgment should lose the interest that has accrued on that judgment merely because a second action and judgment is necessary to enforce the first." Senda, 7 FSM Intrm. at 670. While these circumstances involving multiple civil actions differ from the situation in the present matter, the Senda court does recognize the general concept that a prevailing party should not be deprived of statutory interest accrued on a judgment simply because further court proceedings become necessary to collect that judgment.

As the Senda case does not directly address the operation of 6 F.S.M.C. 1401 under the unique circumstances of the present matter, it is appropriate to look to how the courts of the United States have applied its counterpart, 28 U.S.C. § 1961, in similar situs. . See Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 517 n.7 (App. 1984); Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433 (App. 1984); Chuuk v. Davis, [2005] FMSC 22; 13 FSM Intrm.. 178, 185-86 (App. 2005). While there is a plethora of American cases addressing this issue, they are not all in agreement and do not present a clear path to resolution of this complex issue. Accordingly, a close examination of the operative facts underlying these cases is necessary when applying them to the present matter.

"The U.S. Supreme Court has held that postjudgment interest compensates the successful plaintiff for being deprived of the compensation for the loss from the time between the 'ascertainment of the damage' and the payment by the defendant." Johansen v. Combustion Eng'g, Inc., [1999] USCA11 760; 170 F.3d 1320, 1339 (11th Cir. 1999) (citing Kaiser Aluminum & Chem. Corp. v. Bonjorno, [1990] USSC 50; 494 U.S. 827, 835-36[1990] USSC 50; , 110 S. Ct. 1570, 1576, 108 L. Ed. 2d 842, 852 (1990)).

"Where the judgment is not supported by the evidence and is vacated and damages are determined by a new trial, the damages were not 'ascertained' in any meaningful way." Johansen, 170 F.3d at 1320 (emphasis added). "When an original judgment is not vacated, the date from which post-judgment interest runs turns on the degree to which the original judgment is upheld or invalidated." Id. at 1339. "The initial judgment is viewed as correct to the extent it is permitted to stand, and interest on a judgment partially affirmed should be computed from the date of its initial entry." Id. at 1340.

In Johansen, the trial court's initial judgment awarding punitive damages in the amount of $15 million was "vacated" and remanded back to the trial court for further consideration of whether the punitive damages award was excessive. Id. at 1327. The trial court then entered a second judgment reducing the punitive damages award to $4.35 million. Upon affirming the $4.35 million award on appeal, the appellate court held that post-judgment interest began to accrue on the $4.35 million award as of the date the initial judgment awarding $15 million was entered, finding that this was the point in time in which the damages were clearly ascertained because the initial judgment was ultimately "correct to the extent of $4.35 million." Id. at 1340. In the present matter, the original judgment with respect to trebling the pepper business lost profits damages was ultimately correct in its entirety as the same amount was awarded by the later judgment on remand. Following the logic in Johansen lends to the conclusion that these trebled damages were fully ascertained as of the date of the original judgment.

In Kreiser v. Hobbs, [1999] USCA5 147; 166 F.3d 736 (5th Cir. 1999), a judgment awarding medical malpractice damages entered in 1995 was superseded by an amended judgment entered in 1997. However, the amount of damages did not change upon entry of the amended judgment, which only served to delete the court clerk's erroneous reference from the first judgment to a settling/dismissed defendant. Referencing "the powerful intuition that a plaintiff should not be deprived of his judgment earning interest during a delay which he did not cause," the appellate court concluded that the damages were "fully ascertained" as of the date of the original judgment and ruled that post-judgment interest began accruing on that date. Kreiser, 166 F.3d at 746-47. Likewise, in the present matter, the amount of pepper business lost profits damages did not change upon entry of the judgment on remand. Following the logic of Kreiser lends to the conclusion that these trebled damages were fully ascertained as of the date of the original judgment.

In American Tel. & Tel. v. United Computer Sys., Inc., [1996] USCA9 3409; 98 F.3d 1206 (9th Cir. 1996), judgment confirming an arbitration award of damages to UCS was entered in 1991. On appeal by AT&T and upon remand from the appellate court, the trial court subsequently vacated the arbitration award. On the second appeal initiated by UCS and upon a second remand from the appellate court, the trial court entered a judgment in 1994 confirming the arbitration award. Because the pre-judgment interest rate was higher than the post-judgment interest rate, AT&T urged that post-judgment interest begin accruing as of the 1991 entry of judgment. In ruling that post-judgment interest began accruing as of the 1994 entry of judgment, the AT&T court held:

Where a prior judgment awarding damages has been vacated pursuant to the actions of an ultimately losing party, equitable principles favor calculating the interest in a manner that more fully compensates the prevailing party. Any other result would penalize the prevailing party, and in certain circumstances might also encourage losing parties to instigate post judgment litigation so they can reap the benefits of a low interest rate.

AT&T, 93 F.3d at 1211. Like the AT&T court, this Court is reticent to issue an inequitable decision that would punish the prevailing party and possibly encourage losing parties to instigate post-judgment litigation for the purpose of lessening its eventual financial liability, a particularly relevant concern in a case such as the present matter involving a substantial award with the potential to accrue substantial interest.

In Boyd v. Bulala, 751 F. Supp. 576 (W.D. Vir. 1990), judgment was entered in 1986 awarding the plaintiffs over $8 million in damages in their medical malpractice action. On appeal, the appellate court ordered the trial court to "vacate its present judgment" and enter a new judgment reducing the award pursuant to the controlling statute limiting recovery in medical malpractice actions, which the trial court did in 1990. Boyd, 751 F. Supp. at 577. Although the appellate court directed the trial court to enter the new judgment "with interest" it did not provide any further instruction as to when to apply post-judgment interest. Id. On remand, the trial court appears to have concluded that the appellate court's perfunctory mention of interest was tantamount to a constructive silence on the matter, noting that "[t]he mandate does not specifically spell out the fact that the interest is to run from the date of the judgment on remand." Id. As in the present matter, the trial court in Boyd was left without any instruction as to when post-judgment interest began to accrue. To decide this issue, the trial court examined "the nature of the initial judgment, the action of the appellate court, the subsequent events upon remand, and the relationship between the first judgment and the modified judgment." Id. at 584 (citation and internal quotation marks omitted).

The trial court in Boyd "adopt[ed] the well-established precedent of other federal circuits" and held that post-judgment interest was to accrue on the reduced award as of the date the original judgment was entered in 1986. Id. at 584. Like the present matter, the judgment on remand in Boyd simply applied a statutory requirement to an otherwise factually and legally sound award. "The relevant case law reflects the principle that when the appellate court alters the amount of the award, and not the underlying legal basis for the award, the postjudgment interest can run from the date of the original judgment." Id. at 581. The Appellate Division's action in the present matter was even more passive than that by the court of appeals in Boyd, as the amount of the original award was not altered.

An important aspect of the Boyd case as it relates to the present matter is the court's refusal to be hung up on the appellate court's use of the term "vacate" in its mandate:

Although the appellate court used the term "vacate" in its directive, the fact that it acknowledged the lesser amount of the judgment to be correct indicates that the judgment simply needed to be reduced. But for this court's earlier refusal to reduce the judgment so that it complied with the state statutory cap on damages, the plaintiffs would have been able to collect interest on the lesser amount from the date of the original judgment. The defendant would receive a windfall were it not liable for interest on the lesser amount from the date of first judgment.

Id. at 580. This discussion is particularly helpful in the present matter as the Defendant's position relies largely upon the conclusion that the Appellate Division's use of the term "vacate" keeps this Court's first judgment from being subject to post-judgment interest. However, the Appellate Division recognized, at the very least, the likelihood that the trebled damages award was correct, as is indicated by its explicit allowance to this Court that it may reinstate the trebled damages after expounding its rationale for doing so. On remand, this Court merely provided an additional discourse on statutory interpretation before entering the exact same judgment for a second time with respect to the pepper business lost profits. This Court even granted that it was indeed prudent for the Appellate Division to request such further explanation; if this Court had initially articulated the positive duty imposed by 6 F.S.M.C. 306(2), Plaintiff would clearly be collecting interest on the trebled damages at issue as of this Court's original entry of judgment. Much like the Boyd court, this Court, as a result of its own delayed articulation, does not wish to penalize the Plaintiff and deliver a windfall to the Defendant.

In Clifford v. M/V Islander, 882 F.2d 12 (1st Cir. 1989), the trial court entered judgment awarding plaintiff $150,000.00 on his breach of contract claim. The appellate court "affirmed the liability determination but ruled that the trial judge had insufficiently explained the basis for the damage computation" and "remanded for further findings concerning what damages should be awarded under the contract." Clifford, 882 F.2d at 13. "Without taking additional evidence, the district court fleshed out its findings and again entered judgment for $150,000." Id.

In finding that post judgment interest accrued from the date the first judgment was entered, the Clifford court held:

Once a final judgment has been entered as to liability and damages, vacation of the damage award on appeal and issuance of an order requiring further proceedings to quantify recoverable damages will not prevent accrual of postjudgment interest at the federal statutory rate on the amount common to the earlier and later judgments from the date the original judgment was entered.

Id. at 15 (emphasis added). As in Clifford (and Kreiser, supra), the amount of the award at issue in the present matter did not change with entry of the later judgment on remand. Moreover, this Court finds the Clifford case most factually akin to the pertinent facts in the present matter, where both trial courts were affirmed with respect to liability and then asked to provide further explanation as to damages, which both trial courts did without the taking of new evidence or making of new findings. Indeed, to say this Court merely "fleshed out its findings" on remand from the Appellate Division is a particularly apt description of this Court's action on remand.

Defendant cites the case of Lewis v. Whelan, [1996] USCA2 1010; 99 F.3d 542 (2d Cir. 1996) to support its position. In Whelan, the trial court's judgment awarding the plaintiffs damages was first remanded by the appellate court for reconsideration in light of a specific decision rendered by the U.S. Supreme Court. Subsequently, the trial court's judgment on remand confirming its original decision was remanded again for entry of additional factual findings. In its second judgment on remand, the trial court made additional factual findings and again confirmed its original decision. Presumably because the rate of pre-judgment interest was higher than that for post-judgment interest at the time, the defendant argued that post-judgment interest should begin accruing on the date the trial court entered its first judgment.

In ruling that interest began accruing as of the date the later judgment on remand was entered, the Whelan court held:

Other courts of appeals that have considered the issue have held that where the first judgment is vacated because it lacks a legal basis or requires further factual development, the vacated award should be treated as a nullity and post-judgment interest therefore accrues from the entry of judgment on remand.

Whelan, 99 F.3d at 545 (emphasis added). Before addressing how Whelan might apply to the present matter as suggested by the Defendant, it is important to examine the three specific cases cited by the Whelan court to support its decision.

First, the Whelan court cites the case of Cordero v. De Jesus-Mendez, [1990] USCA1 555; 922 F.2d 11, 16 (1st Cir. 1990) but quotes the Cordero court as holding that "where the original judgment is basically sound but is modified on remand, post-judgment interest accrues from the date of the first judgment." (internal quotation marks omitted). Indeed, the court in Cordero awarded post-judgment interest to accrue beginning on the date of entry of the first judgment because adequate evidence supported the award of damages in the first judgment and the determination of liability in the first judgment was eventually upheld. Cordero, 922 F.2d at 18. Accordingly, and despite its ruling, the Whelan court acknowledges that while judgments lacking a legal basis or requiring further factual findings should not earn interest, those judgments which are basically sound but nonetheless modified on remand should be allowed to earn interest.

Second, the Whelan court cites the case of Hysell v. Iowa Pub. Serv. Co., [1977] USCA8 373; 559 F.2d 468, 476 (8th Cir. 1977) and quotes the Hysell court as holding that "[i]nterest does not accrue on a vacated judgment." (internal quotation marks omitted). The Hysell court did rule that post-judgment interest began accruing after the trial court's judgment on remand as opposed to when the original judgment was entered. However, the original judgment in that case "was expressly vacated on appeal as legally insufficient." Id. (emphasis added). Furthermore, the lower court's judgment on remand included additional findings of fact not included in the original judgment. Id. at 471.

Third, the Whelan court cites the case of Federal Deposit Ins. Corp. v. Rocket Oil Co., [1989] USCA10 10; 865 F.2d 1158, 1161 (10th Cir. 1989) but concedes that in that case the court applied post-judgment interest after remand because the initial judgment was reversed as to the lower court's ultimate determination of liability.

These four cases, taken together, stand for the proposition that a judgment should not earn interest if it (1) is not supported by applicable law, (2) needs further factual/evidentiary findings for its support, and/or (3) is ultimately reversed as to the underlying finding of liability. As in the Hysell case, the original judgment in Whelan was remanded because it was legally and factually insufficient and in both cases the appellate court directed the trial court to make additional findings on remand. Also like the Hysell case, the later judgment on remand in Whelan included additional findings of fact to support the new judgment. These cases are inapposite to the present matter, in which the Appellate Division did not request this Court to make additional findings and explicitly instructed this Court to reconsider the issue of trebled damages "based on the facts before it." Furthermore, the Appellate Division explicitly stated that this Court's initial award of trebled damages did not need additional legal justification and merely instructed this Court to more fully "express its reasons" for trebling the damages. This Court's judgment on remand did not make any additional findings of fact or conclusions of law not included in the original judgment. Rather, this Court simply explained in its judgment on remand its interpretation of the trebling statute which was cited in its original judgment, lending to the conclusion that the original judgment was "basically sound."

Defendant also cites and provides the U.S. District Court decision of S&W Agency, Inc. v. Foremost Insurance Co., 1999 WL 33655721 (N.D. Iowa 1999) to support its position. Like the Whelan case, however, this case is factually distinguishable from the present matter. In S&W Agency. Inc., a 1995 jury award of $8 million in punitive damages was set aside, after which a new "separate and distinct trial" was held eventually resulting in an award of $4 million in punitive damages in 1998. The fact that a new trial interceded between the first and second judgments in the S& W Agency case prevents its consideration in the context of the present matter.

Finally, the Defendant's reliance upon the decision in Kaiser Aluminum & Chem. Corp. v. Bonjorno, [1990] USSC 50; 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990) is likewise misplaced, as the U.S. Supreme Court's refusal in that case to award post judgment interest on the first judgment was explicitly based upon the conclusion that the first judgment "was not supported by the evidence." Id. at 836, 110 S. Ct. at 1576, 108 L. Ed. 2d at 852. Kaiser is not persuasive in the present matter as there was no evidentiary deficiency in this Court's original award of trebled damages.

IV. Conclusion

The Court does not find persuasive the cases cited by Defendant and instead chooses to follow the reasoning employed in the cases of Senda, Johansen, Kreiser, AT&T, Boyd, and Clifford, supra, and holds the following.

The equitable purpose of post-judgment interest is to compensate the successful plaintiff for being deprived of the compensation for the loss from the time between the ascertainment of the damage and the payment by the defendant. A judgment lacking a sufficient legal or evidentiary basis or requiring further factual development should not accrue interest. A legally sufficient judgment that is basically sound but on remand is modified to include additional clarification or explanation without consideration of new evidence or the making of additional findings should accrue interest.

Equitable principles favor calculating the interest in a manner that more fully compensates the prevailing party. Once a final judgment has been entered as to liability and damages, vacation of the damage award on appeal and issuance of an order requiring further proceedings to explain the basis for the recoverable damages will not prevent accrual of post-judgment interest on the amount common to the earlier and later judgments from the date the original judgment was entered. These principles, though gleaned from the American cases discussed above, are in accordance with the equitable concept underlying the Appellate Division's holding in Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 18; 7 FSM Intrm. 664, 670 (App. 1996).

The Court has examined the nature of its initial judgment, the action of the Appellate Division, the subsequent events upon remand, and the relationship between the first judgment and the second judgment. In its initial judgment, this Court trebled the pepper business lost profits damages and explicitly referenced the controlling statute, 32 F.S.M.C. 306(2). On appeal, the Appellate Division affirmed the underlying liability as well as the base award for the pepper business lost profits. Although the Appellate Division vacated the trebled portion of the award, it was not vacated for legal or evidentiary insufficiency and the Appellate Division did not request the entering of any additional findings. Rather, the Appellate Division requested further explanation as to why this Court applied this statute to the damages at issue and explicitly allowed for reinstatement of the trebled damages. On remand, this Court explained that 32 F.S.M.C. 306(2) compelled a mandatory trebling of damages and reinstated the same award for a second time without the consideration of any additional evidence or the making of any additional factual findings. With respect to the award of pepper business lost profits damages, the first and second judgments in this matter are identical, and both are supported by the exact same evidentiary and legal basis.

Under these circumstances, the Court finds that the trebled award for the pepper business lost profits damages was fully ascertainable as of the date the July 8, 2004 judgment was entered and interest on this award accrues from that date.

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^[1]The judgment of April 14, 2006, also awarded damages for Defendant’s injury to Plaintiff’s trochus business. However, calculation of post-judgment interest on the trochus damages award is not in controversy.