Ehsa v Johnny [2013] FMSC 46; 19 FSM R. 175 (App. 2013) (27 September 2013)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P5-2013
(Civil Action No. 2007-035)

PERDUS I. EHSA and TIMAKIO I. EHSA,
Petitioners,

vs.

HON. READY E. JOHNNY and FSM SUPREME COURT TRIAL DIVISION,
Respondents,

FSM DEVELOPMENT BANK,
Real Party in Interest.

_____________________________________________

ORDER DENYING PETITION FOR WRIT OF PROHIBITION

Decided: September 27, 2013

BEFORE:

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

APPEARANCE: Benjamin M. Abrams, Esq.

International Guam Law Offices, P.C.

P.O. Box 141

Hagatna, Guam 96932

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HEADNOTES

Mandamus and Prohibition - Nature and Scope
A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. Such a writ may only prevent a clear abuse of power and cannot be used to test or overrule a judge's exercise of discretion. Mere legal error by a judge, even gross legal error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support the issuance of a writ of prohibition. Ehsa v. Johnny, 19 FSM R. 175, 177 (App. 2013).

Mandamus and Prohibition - When May Issue
A writ of prohibition may issue when a court is about to engage in judicial action that is unauthorized and when there is no other adequate remedy to address the injury that will result from the unauthorized conduct. Whether to grant a writ of prohibition involves the court's full recognition of the extraordinary nature of the relief requested. Ehsa v. Johnny, 19 FSM R. 175, 177 (App. 2013).

Appellate Review; Judgments; Mandamus and Prohibition - When May Issue
When the issue of the trial court's jurisdiction is being appealed on various constitutional grounds but there has been no determination that the trial court lacks jurisdiction, the trial court retains jurisdiction to enforce the judgment and is not acting without authority or jurisdiction. The extraordinary writ of prohibition will not serve as a substitute for that appeal. Ehsa v. Johnny, 19 FSM R. 175, 177-78 (App. 2013).

Appellate Review - Stay - Civil Cases; Mandamus and Prohibition - When May Issue
When there is no basis for the court to depart from the procedures established for a stay to be put in place pending an appeal since the petitioner has other adequate remedies to obtain what he seeks and since the petitioner, who is also seeking an extraordinary writ of prohibition, has not met his burden to show that his right to the writ is clear and indisputable, the petition for a writ of prohibition will be denied. Ehsa v. Johnny, 19 FSM R. 175, 178 (App. 2013).

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COURT'S OPINION

PER CURIAM:

I. Background

A Petition for Writ of Prohibition, filed on September 9, 2013, requests that a writ of prohibition issue to the trial court in FSM Dev. Bank v. Ehsa, Civil Action No. 2007-035, ordering it to refrain from further exercise of subject matter jurisdiction and to hold in abeyance all further hearings and proceedings pending the final determination of Ehsa v. FSM Dev. Bank, Appeal Case No. P3-2013.

On December 28, 2007, a money judgment was entered by the trial court in Civil Action No. 2007-035 against the Defendants, Perdus and Timakio Ehsa (Ehsa). The Ehsas moved for relief from that judgment. On March 19, 2013, the trial court denied their FSM Civil Rule 60(b) motion for relief. On April 16, 2013, the Ehsas appealed the denial. No motion to stay the judgment or any supersedeas bond has been provided to stay execution on the judgment during the pendency of the appeal pursuant to FSM Civil Rule 62.

On August 7, 2013, the Plaintiff Federated States of Micronesia Development Bank (FSMDB) filed a request for hearing to enforce the judgment. This motion was opposed by the Defendants who filed an Opposition to Plaintiff's Ex Parte Hearing Request and Motion to Reconsider on August 15, 2013. The trial court entered an Order Denying Vacation of Hearing on September 2, 2013,[1] and set a hearing for October 2, 2013.

II. Discussion and Analysis

The Petitioners contend that the trial court limited its basis for denying the relief sought to the mechanism of a stay and overlooked the effect of an appeal, not from a judgment, but from a decision deciding constitutional issues of first impression upon which the court's subject matter jurisdiction to have proceeded ab initio depended. The Petitioners further state that this purely singular reasoning underpins the court's determination to enforce its judgment heedless of the pending constitutional challenges to its jurisdiction to do so. Petition at 7.

A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. Such a writ may only prevent a clear abuse of power and cannot be used to test or overrule a judge's exercise of discretion. Mere legal error by a judge, even gross legal error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support the issuance of a writ of prohibition. Etscheit v. Amaraich, [2007] FMSC 12; 14 FSM Intrm. 597, 600 (App. 2007).

A writ of prohibition may issue when a court is about to engage in judicial action that is unauthorized and when there is no other adequate remedy to address the injury that will result from the unauthorized conduct. Urusemal v. Capelle, [2004] FMSC 44; 12 FSM Intrm. 577, 585 (App. 2004). Whether to grant a writ of prohibition involves the court's full recognition of the extraordinary nature of the relief requested. Id.

Under the circumstances presented, the trial court retains jurisdiction to enforce the judgment and is not acting without authority or jurisdiction. TSA Int'l Ltd. v. Shimizu Corp., 990 P.2d 713, 735 (Haw. 1999); Farms v. Carlsbad Riverside Apartments, Inc., 690 P.2d 1044, 1046 (N.M. Ct. App. 1984). The issue of the trial court's jurisdiction is being appealed on various constitutional grounds, but there is no determination at this stage that the trial court lacks jurisdiction. The extraordinary writ of prohibition is not to serve as a substitute for an appeal.

The court finds no basis for it to depart from the procedures established for a stay to be put in place pending an appeal in this matter. The Petitioner seeking this extraordinary writ has not met its burden to show that its right to the writ is clear and indisputable. Senda v. Trial Division, [1994] FMSC 40; 6 FSM Intrm. 336, 338 (App. 1994); Nikichiw v. Petewon, [2007] FMCSC 17; 15 FSM Intrm. 33, 37 (Chk. S. Ct. App. 2007). There are other adequate remedies for the Petitioner to obtain what he seeks. FSM Civ. R. 62.

III. Conclusion

For the reasons set forth above, we find that the trial court is not acting without authority or jurisdiction, that the necessary requirements for the granting of an extraordinary writ of prohibition are not present, and we conclude that the writ clearly should not be granted. We therefore hereby deny the petition.

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^[1] In its September 2, 2013 order, the trial court stated:

By rule, a judgment is automatically stayed for only ten days. FSM Civ. R. 62(a); People of Rull ex rel. Ruepong v. M/V Kyowa Violet, [2006] FMSC 35; 14 FSM Intrm. 501, 503 (Yap 2006) (statutory right to obtain the immediate issuance of a writ of execution is automatically stayed for ten days by court rule, and may be stayed by the court pending an appeal). Once that ten days has passed, the judgment holder is free to execute on or to enforce the judgment unless a supersedeas bond has been posted and approved by the court, FSM Civ. R. 62(d), or a stay sought and granted. "’In the absence of a stay obtained in accordance with Rule 62(d), the pendency of an appeal does not prevent the judgment creditor from acting to enforce the judgment.’" FSM Dev. Bank v. Arthur, [2008] FMSC 60; 16 FSM Intrm. 132, 142 (Pon. 2008) (quoting 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2905, at 524ed. 1995)) (app (appellant who cannot furnish a supersedeas bond assumes the risk of not getting his money back if the judgment is reversed). "An appeal from a final judgment does not affect udgment holder’s righ right to execute upon the judgment." Farms v. Carlsbad Riverside Apartments, Inc., 690 P.2d 1044, 1046 (N.M. Ct. App. 1984).

"An appeal from a final judgment does not affect the judgment holder’s right to enforce the judgment unless a supersedeas bond is posted or a stay of enforcement is ordered by the court." 47 AM. JUR. 2D Judgments § 961, at 4ev. ed. 1995).

.

Generally, the filing of a notice of a appeal divests the trial court of jurisdiction over the appealed case. . . .

TSA Int’l Ltd. v. Shimizu Corp., 990 P.2d 713, 735 (Haw. 1999) (citations omitted). The trial court therefore retains jurisdiction to enforce the judgment against the Ehsas. The bank may therefore, in the absence of a stay, seek to enforce its judgment against Perdus I. Ehsa and Timakio I. Ehsa.

FSM Dev. Bank v. Ehsa, 19 FSM R. 128, 130 (Pon. 2013).