Setik v FSM Development Bank [2018] FMSC 13; 21 FSM R. 505 (App. 2018) (1 May 2018)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P6-2016
APPEAL CASE NO. P11-2015
APPEAL CASE NO. P4-2015
(consolidated)
(Civil Acton Nos. 2007-008 & 2010-006)

MARIANNE B. SETIK, THE ESTATE OF MANNY )
SETIK, ATANASIO SETIK, VICKY SETIK IRONS, )
IRENE SETIK WALTER, MARLEEN SETIK, )
JUNIOR SETIK, ELEANOR SETIK SOS, JOANITA )
SETIK PANGELINAN, MERIAM SETIK, )
CHRISTOPHER JAMES SETIK, JERMINA SETIK, )
and AREEN SETIK, individually and d/b/a )
C-STAR APARTELLE, )
)
Appellants, )
)
vs. )
)
FSM DEVELOPMENT BANK, )
)
Appellee. )
_____________________________________________ )

OPINION

Argued: August 11, 2017
Submitted: September 12, 2017
Decided: May 1, 2018

BEFORE:

Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Mayceleen J.D. Anson, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellants: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Appellee: Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review Briefs, Record, and Oral Argument
When an appellant has not included in the appendix parts of the record that the appellee has designated as needed, the appellee may supplement the appendix. The parts of the supplemental appendix that were part of the trial court record are, as a matter of course, allowed. Setik v. FSM Dev. Bank, 21 FSM R. 505, 513 (App. 2018).

Appellate Review Briefs, Record, and Oral Argument
If a party wants an appellate court to take judicial notice of matter outside the record, it must provide the court with the necessary information. A supplemental appendix, with the items therein for which judicial notice is sought clearly labeled as such, is a perfectly acceptable method to do this. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Evidence Judicial Notice
A party opposed to a court taking judicial notice must make a timely objection. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Appellate Review Standard Civil Cases Abuse of Discretion; Judgments Relief from Judgment
Since Rule 60(b) relief from judgment is addressed to the court’s sound discretion, an appellate court reviews the trial court’s denial of relief from judgment using the abuse of discretion standard. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Appellate Review Standard Civil Cases Abuse of Discretion; Judgments Relief from Judgment Grounds
The denial of a Rule 60(b) motion does not bring up the underlying judgment for review. The appellate court’s review is limited to whether the trial court abused its discretion in denying the Rule 60(b) motion because Rule 60(b) is not a substitute for a direct appeal from an erroneous judgment. That a judgment is erroneous does not constitute a ground for relief under the Rule. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Civil Procedure Default and Default Judgments Entry of Default Setting Aside; Judgments Relief from Judgment Default Judgments
Rule 55(c) governs only the setting aside of an entry of default. It is Rule 60(b) that governs the setting aside of a default judgment (and all other judgments). If a court determines that, under Rule 60(b)’s requirements, a default judgment should be set aside, then the entry of default will also be set aside. That is because, if the Rule 60(b)’s higher requirements for relief from judgment have been met, then Rule 55(c)’s lower requirement of good cause is also met. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Civil Procedure Default and Default Judgments Entry of Default Setting Aside; Judgments Relief from Judgment Default Judgments
When relief is sought only from the entry of default the standard is "good cause," and when relief is also sought from the entry of a default judgment the "reasons" set forth in Rule 60(b) may supply the good cause. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Civil Procedure Default and Default Judgments Entry of Default Setting Aside
Any of the reasons sufficient to justify the vacation of a default judgment under Rule 60(b) normally will justify relief from an entry of default and in various situations an entry of default may be set aside for reasons that would not be enough to open a default judgment. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Judgments Relief from Judgment
A litigant, as a precondition to Rule 60(b) relief, must give the trial court reason to believe that vacating the judgment will not be a futile gesture or an empty exercise, that is, that the litigant has a meritorious defense. Setik v. FSM Dev. Bank, 21 FSM R. 505, 514 (App. 2018).

Judgments Relief from Judgment Time Limits
Since Rule 60(b) specifically provides that Rule 60(b) motions must be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment was entered, a Rule 60(b) motion on those grounds that was not made within one year of any of the judgments, but was made years later, is too late. Setik v. FSM Dev. Bank, 21 FSM R. 505, 515 (App. 2018).

Civil Procedure Default and Default Judgments Sum Certain
Default judgments entered by the clerk (but not for default judgments entered by the court) are the only judgments for which a sum certain is a requirement. Setik v. FSM Dev. Bank, 21 FSM R. 505, 515 (App. 2018).

Civil Procedure Default and Default Judgments Sum Certain
For the clerk to enter a default judgment without a judge’s participation the plaintiff’s claim against the defendant must be for a sum certain or for a sum which can by computation be made certain, and this can only be done on the plaintiff’s request and upon affidavit of the amount due. Setik v. FSM Dev. Bank, 21 FSM R. 505, 515 (App. 2018).

Civil Procedure Default and Default Judgments Sum Certain
Bank loans and promissory notes are classic examples of a sum certain. The parties have agreed to the loan’s terms and, when the loan remains unpaid, the amount due can be made certain by computation according to the loan’s agreed terms. Setik v. FSM Dev. Bank, 21 FSM R. 505, 515 (App. 2018).

Judgments Relief from Judgment Time Limits
Relief cannot be sought under subsection 60(b)(6) if the time has passed to seek relief under 60(b)(1), since Rule 60(b)(6) is reserved for extraordinary circumstances not covered in any of the other Rule 60(b) subsections and cannot be used to circumvent the one-year time limit for motions brought under subsections (1), (2), and (3). Setik v. FSM Dev. Bank, 21 FSM R. 505, 515 (App. 2018).

Judgments Relief from Judgment Time Limits
Mere clerical errors in judgments, such as those of calculation, may be corrected under Rule 60(a) at any time. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Judgments Relief from Judgment Grounds
That rental payments may have been diverted is not a ground for relief from judgments that were entered years before that diversion. At most, the judgment-debtors would have an argument about the amount outstanding on the judgments. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Judgments Relief from Judgment Grounds

A motion may seek timely Rule 60(b)(1) relief when it seeks relief from a recent order in aid of judgment, and not from the judgment itself. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Jurisdiction Personal
For the trial court to have had personal jurisdiction over all the defendants, each defendant had to have been served the complaint and summons. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Judgments Void; Jurisdiction Personal
A court that lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Judgments Relief from Judgment Default Judgments; Judgments Relief from Judgment Time Limits; Judgments Void
If a default judgment has been entered when the court lacked personal jurisdiction over the defendant, then that default judgment is void and relief can be sought under Rule 60(b)(4), for which there is no time limit to seek relief. Setik v. FSM Dev. Bank, 21 FSM R. 505, 516 (App. 2018).

Appellate Review Standard Civil Cases
Generally, the rule is that an issue not raised below will not be considered for the first time on appeal. Setik v. FSM Dev. Bank, 21 FSM R. 505, 517 (App. 2018).

Courts Judges
Since the Chief Justice by rule may give special assignments to retired Supreme Court justices and judges of state and other courts; since judicial rules may be amended by statute; and since a statute already exists setting out the procedure for giving special assignments to retired Supreme Court justices and judges of state and other courts, the Chief Justice must follow that procedure. Setik v. FSM Dev. Bank, 21 FSM R. 505, 517 (App. 2018).

Courts; Statutes
A statute takes precedence over the procedural rules because, while the Chief Justice has the power to promulgate procedural rules, those rules may be amended by statute, and because the Chief Justice does not have the power to amend a statute, a Congressionally enacted procedural rule is valid. Setik v. FSM Dev. Bank, 21 FSM R. 505, 517 (App. 2018).

Courts Judges Temporary Judges
The Chief Justice is required by statute to give notice to the President and the Congress upon the appointment of any temporary Justice. While the concurrent issuance of a separate order of assignment, filed in the relevant case, is undoubtedly the better practice, no law or rule requires it. Setik v. FSM Dev. Bank, 21 FSM R. 505, 517 (App. 2018).

Courts Judges; Courts Recusal
Often a litigant will not know which judge has been assigned the case until that judge either issues his or her first written order or appears on the bench at the case’s first hearing. That is when, if there are grounds for the motion, a litigant would usually move to disqualify the judge. Setik v. FSM Dev. Bank, 21 FSM R. 505, 517 (App. 2018).

Appellate Review; Appellate Review Notice of Appeal; Judgments

A notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal. Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, applications for stays pending appeal, taxation of costs on a judgment after notice of appeal filed, considering and denying a Rule 60(b) relief from judgment motions (but not granting one unless the case is remanded), and, since the mere filing of a notice of appeal does not affect a judgment’s validity, the trial court also retains jurisdiction to enforce the judgment, unless a stay has been granted. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Appellate Review Stay Civil Cases
Where a motion for a stay only sought a stay while the Rule 60(b) motion was pending, when the trial court had just denied the Rule 60(b) motion, it correctly denied the stay motion. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 n.5 (App. 2018).

Appellate Review Notice of Appeal; Appellate Review Stay Civil Cases
The filing of a notice of appeal does not operate as a stay. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Debtors’ and Creditors’ Rights Orders in Aid of Judgment; Property Mortgages
When no stay pending appeal had been granted, the trial court had the jurisdiction to not only deny the defendants’ Rule 60(b) motion for relief from judgment, but it also had the jurisdiction to enforce the money judgment by mortgage foreclosure. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Jurisdiction In Rem; Jurisdiction Territorial
When a court exercises jurisdiction over land, it can only exercise that jurisdiction in the nature of an in rem proceeding. In rem proceedings encompass any action in which essential purpose of suit is to determine title to or affect interests in specific property located within the territory over which court has jurisdiction. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Jurisdiction In Rem; Property
In rem jurisdiction includes registration of land titles, mortgages, and probate proceedings involving land. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Jurisdiction In Rem; Jurisdiction Territorial
To be able to exercise in rem jurisdiction, the property over which the court is to exercise jurisdiction must be physically present within the court’s territorial jurisdiction and under its control. Setik v. FSM Dev. Bank, 21 FSM R. 505, 518 (App. 2018).

Jurisdiction Territorial; Property
No court located in Chuuk can exercise jurisdiction over land in Pohnpei. Only a court in Pohnpei can do that. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Domestic Relations Probate
The purpose of ancillary probate proceedings in places other than where the main probate case is, is to probate the decedent’s properties in those locations. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Domestic Relations Probate; Property Registered Land
An ancillary probate proceeding for registered land (land with a certificate of title) on Pohnpei is through an heirship proceeding in the Pohnpei Court of Land Tenure. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Banks and Banking

Congress created the FSM Development Bank and gave it the power to lend money either with or without security, and if with security upon such terms as may from time to time seem expedient. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Banks and Banking; Judgments Relief from Judgment Grounds
A claim that the FSM Development Bank should not be trying to make a profit is neither a ground for relief from judgment nor a meritorious defense. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Judgments Relief from Judgment Grounds
When the appellants’ reasons were not sufficient to justify vacating the default judgments under the Rules generally available to them, Rule 60(b)(4) and 60(b)(6), and when they failed to show a meritorious defense, the trial court did not abuse its discretion when it denied their motion for relief from judgment. Setik v. FSM Dev. Bank, 21 FSM R. 505, 519 (App. 2018).

Appellate Review Notice of Appeal
When a notice of appeal is filed before the disposition of any Rule 59 motion, it has no effect, and a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the Rule 59 motion. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520 (App. 2018).

Civil Procedure Filings; Civil Procedure Motions
A motion or a filing is what it is regardless of what the party filing it has labeled it. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520 (App. 2018).

Appellate Review Notice of Appeal
Appellate Rule 4(a)(4) makes a notice of appeal filed while a Rule 59 motion is pending a nullity and requires the filing of a new notice of appeal once the Rule 59 is decided, but it does not require a new notice of appeal if a pending Rule 60(b) motion is decided. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520 (App. 2018).

Appellate Review Standard Civil Cases Abuse of Discretion; Debtors’ and Creditors’ Rights Orders in Aid of Judgment; Property Mortgages
The trial court’s issuance of an order transferring title six days after the bank filed its motion and notice of payment was not reversible error when an earlier order in aid of judgment required that a court order transferring title to the parcel had to be issued no later than ten days after notice is given of delivery of a cashier’s check in the full amount and when the appellants do not contend that there were any procedural defects in the sale on which they could base a challenge to its outcome. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520 (App. 2018).

Courts Recusal Close Relationship
All FSM Supreme Court justices, including temporary justices while they sit, are subject to the FSM Judiciary Act, under which, an FSM Supreme Court justice must disqualify herself where she or her spouse, or a person within a close relationship to either of them, or the spouse of such a person, is known by the justice to have an interest that could be substantially affected by the outcome of the proceeding. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520 (App. 2018).

Courts Recusal Close Relationship
The Judiciary Act requires Supreme Court justices to adhere to the standards of the Code of Judicial Conduct of the American Bar Association, and that Code defines close relationship as someone within the third degree of relationship. An uncle is within the third degree of relationship. Setik v. FSM Dev. Bank, 21 FSM R. 505, 520-21 (App. 2018).

Courts Recusal
Although 4 F.S.M.C. 124 and the ABA Code of Judicial Conduct as made applicable to the FSM Supreme Court by 4 F.S.M.C. 122 define the circumstances that mandate the disqualification of FSM Supreme Court justices, those provisions neither prescribe nor prohibit any particular remedy for a violation of that duty. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521 (App. 2018).

Courts Recusal
A conclusion that a violation of the recusal statute occurred does not end the inquiry. As in other areas of the law, there is surely room for harmless error, and there need not be a draconian remedy for every violation. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521 (App. 2018).

Courts Recusal
A disqualified judge may perform purely ministerial tasks. An act is ministerial when the law requires that a duty be performed and leaves nothing to the exercise of discretion or judgment. Discretionary acts are those in which one has the right to determine between two or more courses of action. Simply put, an act which one must perform is ministerial, while an act which one may perform is discretionary. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521 (App. 2018).

Courts Judges
A ministerial act is an act performed without the independent exercise of discretion or judgment. Ministerial means of or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521 (App. 2018).

Courts Recusal
A disqualified judge is not prevented from making orders that are purely formal in character and may also issue housekeeping orders. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521 (App. 2018).

Courts Recusal
When an order transferring title was in the nature of a ministerial or a housekeeping act because the justice did not have the discretion not to issue it since its prompt issuance once the successful qualified bidder had paid in full was mandated by an earlier order in aid of judgment that an order issue to transfer title so that the Pohnpei Court of Land Tenure could then perform its duties; and when, if another judge had been presented with the motion, the resulting order would not differ, the disqualified justice’s order will not be vacated. Setik v. FSM Dev. Bank, 21 FSM R. 505, 521-22 (App. 2018).

Courts Recusal Bias or Partiality; Courts Recusal Close Relationship
When the trial court justice should have known that her uncle had a substantial interest that might be affected by future rulings; and when she should also have realized that by then her impartiality might reasonably be questioned, she should have recused herself and not ruled on a motion to reconsider, and when she did not, that order will be vacated. Setik v. FSM Dev. Bank, 21 FSM R. 505, 522 (App. 2018).

* * * *

COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This consolidated appeal arises from several post-judgment orders which the judgment-debtors ("the Setiks") challenge. We affirm the trial court orders denying relief from judgment and transferring title. The order subsequent to those is vacated. Our reasoning follows.

I. BACKGROUND

The late Raymond Setik was a Chuukese businessman. Among his business interests was a real estate development on Pohnpei known as C-Star Apartelle. Raymond Setik was the registered owner of he had certificates of title for the land on which C-Star Apartelle was located.^[1] After his demise in 1997, family members continued to operate the C-Star Apartelle business. Probate was opened in the Chuuk State Supreme Court. See In re Estate of Setik, 12 FSM R. 423 (Chk. S. Ct. Tr. 2004). On May 28, 2001, an heirship petition was filed in the Pohnpei Court of Land Tenure for all of Raymond Setik’s Pohnpei real estate, including the C-Star Apartelle land. On October 29, 2001, that court issued its determinations of heirship of ownership.^[2]

To payoff Raymond Setik’s C-Star loans from the Bank of Guam and the Bank of the FSM (and thus retire those banks’ mortgages) and to finance C-Star Apartelle improvements, Manny Setik borrowed $658,000 from the FSM Development Bank. On November 16, 2001, the Setiks secured that loan with a mortgage on the C-Star property. That mortgage was duly inscribed on the certificates of title. Manny Setik died in Hawaii, December 7, 2004.

The C-Star Apartelle loan soon went into default. The bank provided notice of default. On January 30, 2007, the bank filed suit (Civil Action No. 2007-008) against the Setiks on the defaulted loan and to foreclose the mortgage. On February 1, 2008, the clerk entered an $887,188.07 default judgment against Marianne B. Setik and Irene Setik Walter. And on January 25, 2010, the court entered an $856,016.97 default judgment against Atanasio Setik, Vicky Setik Irons, Eleanor Setik Sos, Patricia Setik, Joanita Setik Pangelinan, Marleen Setik, and Junior Setik. On February 10, 2010, the bank filed suit (Civil Action No. 2010-006) against Meriam Setik, Christopher James Setik, Jermina Setik, and Areen Setik. On March 22, 2010, the court entered an $856,016.97 default judgment against those four defendants.

On December 24, 2013, the trial court (Chief Justice Martin Yinug, presiding) consolidated Civil Action No. 2007-008 and Civil Action No. 2010-006, and, based on a November 22, 2013 hearing, also issued an order in aid of judgment which required that, if the judgment was not paid within three months, the C-Star property, including "all buildings, fixtures, equipment and other improvements situated thereon, commonly known as C-Star Apartelle (other than personal property owned by the tenants)" would be sold at an public auction conducted by the bank, using sealed bids.

On January 30, 2014, Irene Setik Walter, individually and as administrator for the Estate of Manny Setik, Eleanor Setik Sos, Marleen Setik, Meriam Setik, and Patricia Setik moved, under Civil Procedure Rule 60(b), for relief from judgment. They contended that the trial court judgment(s) should be set aside because Manny Setik had paid for credit life insurance and this was not used to pay off the loan; because the amounts listed in the loan to payoff the Bank of Guam and Bank of FSM loans were higher than the actual payoff amounts; because the mortgage was only for the land and not the buildings on it; because land was exempt from writs of execution; because the order’s designated auctioneer had died, thus creating a deficiency in the order; and because default judgments violated their rights to procedural due process. Accompanying the motion for relief from judgment was a motion seeking a stay until the Rule 60(b) motion was denied.

Chief Justice Yinug took no action on these motions before he passed away. No judge was assigned to the case until, on June 18, 2015, Acting Chief Justice Ready E. Johnny designated Republic of Palau Supreme Court Associate Justice Lourdes F. Materne as a temporary justice to preside over the case. This was done by letters to the President and Congress.

On July 1, 2015, Temporary Justice Materne issued her ruling. She denied the motion for relief from judgment, FSM Dev. Bank v. Setik, 20 FSM R. 85, 88-89 (Pon. 2015), and its accompanying motion to stay, id. at 89-90, and granted the bank’s motion to substitute a new land sales agent to implement the December 24, 2013 order in aid of judgment, id. at 90.

After the auction was conducted, the bank, on November 18, 2015, moved that title to the C-Star property be transferred to the winning bidder, Feliciano Perman. On November 24, 2015, the trial court issued its order to transfer title to Perman. On November 30, 2015, the Setiks moved for reconsideration of that order. The trial court denied that motion on February 25, 2016. FSM Dev. Bank v. Setik, 20 FSM R. 315 (Pon. 2016).

The Setiks timely appealed each of the July 1, 2015, November 24, 2015, and February 25, 2016 orders. On October 27, 2016, all three appeals (Appeal Case Nos. P4-2015, P11-2015, and P6-2016) were consolidated into Appeal Case No. P6-2016.

II. ISSUES PRESENTED

The Setiks contend that the trial court erred

1) when, on July 1, 2015, it denied them relief from judgment and from the order of sale;

2) when, on November 24, 2015, it ordered the title to the land to be transferred to the successful auction bidder;

3) when, on February 25, 2016, it denied reconsideration of its November 24, 2015 order; and

4) by violating their constitutional rights to due process.

At oral argument, we asked the parties to submit memorandums on whether a court in one state can exercise jurisdiction over land or real estate in another state since the Setiks contended that the trial court lacked jurisdiction to sell the mortgaged land because the Chuuk state court probate proceedings were not over. Those memorandums and any replies thereto were due by September 12, 2017. After that date, we considered this consolidated appeal submitted to us for our decision.

III. PRELIMINARY MATTER

The Setiks included in their September 12, 2017 reply memorandum, a motion to strike the bank’s supplemental appendix, which the bank had filed with its answering brief on March 3, 2017. Since the Setiks neither made this motion before nor at oral argument, we must deny it as untimely.

Furthermore, when an appellant has not included in the appendix parts of the record that the appellee has designated as needed, FSM App. R. 30(b); see also Central Micronesia Commc’ns, Inc. v. FSM Telecomm. Corp., 20 FSM R. 311, 313 (App. 2016), the appellee may supplement the appendix, Chuuk v. Davis, 13 FSM R. 178, 183 (App. 2005); Kitti Mun. Gov’t v. Pohnpei, 11 FSM R. 622, 627 (App. 2003). The parts of the bank’s supplemental appendix that were part of the trial court record are thus, as a matter of course, allowed. And, if a party wants an appellate court to take judicial notice of matter outside the record, it must, as required by Evidence Rule 201(d), provide the court with the necessary information. A supplemental appendix, with the items therein for which judicial notice is sought clearly labeled as such, is a perfectly acceptable method to do this. The bank did that. A party opposed to a court taking judicial notice must make a timely objection. FSM Evid. R. 201(e). The Setiks did not do this.

IV. ANALYSIS

A. Motion for Relief from Judgment

Since Rule 60(b) relief from judgment is addressed to the court’s sound discretion, we review the trial court’s July 1, 2015 denial of relief from judgment using the abuse of discretion standard. Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 506 (App. 2016); Damarlane v. Damarlane, 19 FSM R. 97, 104 (App. 2013); Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657 (App. 2009); Panuelo v. Amayo, 12 FSM R. 365, 372 (App. 2004); Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 445 (App. 1994). "The denial of a Rule 60(b) motion does not bring up the underlying judgment for review." In re Ta Chi Navigation (Panama) Corp.[1984] USCA5 435; , 728 F.2d 699, 703 (5th Cir. 1984). "[O]ur review is limited to whether the [trial] Court abused its discretion in denying the Rule 60(b) motion." Id. That is because Rule 60(b) "[i]s not intended as a substitute for a direct appeal from an erroneous judgment. The fact that a judgment is erroneous does not constitute a ground for relief under the Rule." In re Contempt of Jack, 20 FSM R. 452, 460 (Pon. 2016).

The Setiks moved to set aside the judgment(s) under Rule 55(c) and Rule 60(b) of the FSM Rules of Civil Procedure. It is important to distinguish between an entry of default and a default judgment. Rule 55(c) governs only the setting aside of an entry of default. It is Rule 60(b) that governs the setting aside of a default judgment (and all other judgments).

If a court determines that, under Rule 60(b)’s requirements, a default judgment should be set aside, then the entry of default will also be set aside. That is because, if the Rule 60(b)’s higher requirements for relief from judgment have been met, then Rule 55(c)’s lower requirement of good cause is also met. "When relief is sought only from the entry of default the standard is ’good cause,’ and when relief is also sought from the entry of a judgment by default the ’reasons’ set forth in Rule 60(b) may supply the good cause." United Coin Meter Co. v. Seaboard Coastline R.R., [1983] USCA6 559; 705 F.2d 839, 843-44 (6th Cir. 1983). "Any of the reasons sufficient to justify the vacation of a default judgment under Rule 60(b) normally will justify relief from a default entry and in various situations a default entry may be set aside for reasons that would not be enough to open a default judgment." 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2696, at 164 (2016).

Thus our focus is solely on whether there are reasons sufficient, under Rule 60(b), to justify vacation of the Setiks’ default judgments. Also, "[a] litigant, as a precondition to Rule 60(b) relief, must give the trial court reason to believe that vacating the judgment will not be a futile gesture or an empty exercise, that is, that the litigant has a meritorious defense." FSM Dev. Bank v. Arthur, 15 FSM R. 625, 635 (Pon. 2008).

1. The Rule 60(b) Motion’s Timeliness

The Setiks contend that the trial court should have granted them relief under Rules 60(b)(1), 60(b)(2), and 60(b)(3), and that the trial court erred when it ruled that its motion based on those rules was untimely. They assert that their January 30, 2014 motion for relief from judgment was timely because it was within one year of the trial court’s December 24, 2013 order in aid of judgment.

We must reject that contention. Rule 60(b) specifically provides that Rule 60(b) motions "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." FSM Civ. R. 60(b). The Setiks’ January 30, 2014 motion was not made within one year of any of the judgments (February 1, 2008, January 25, 2010, February 10, 2010, and March 22, 2010) from which they seek relief. It was made years later. It was too late.

The trial court thus correctly ruled that the Setiks’ motion, to the extent that it was seeking relief under Rule 60(b)(1), 60(b)(2), or 60(b)(3), was untimely. Setik, 20 FSM R. at 88. (The January 30, 2015 motion would have been timely to seek relief from the order in aid of judgment to the extent that that order was a final order and to the extent that the movants sought relief from only that order and not from the underlying judgments.) That leaves Rule 60(b)(4) and 60(b)(6) as possible avenues for relief.

2. Sum Certain

The Setiks contend that default judgments could not be entered against them, and therefore must be set aside, because the default judgments were not for a sum certain. Technically, this argument can only apply to the default judgment entered on February 1, 2008, against Marianne B. Setik and Irene Setik Walter because that was the only default judgment entered by the clerk, acting alone. The other two default judgments were entered by the court. Default judgments entered by the clerk (but not for default judgments entered by the court) are the only judgments for which a sum certain is a requirement.

For the clerk to enter a default judgment without a judge’s participation^[3] "the plaintiff’s claim against [the] defendant [must be] for a sum certain or for a sum which can by computation be made certain." FSM Civ. R. 55(b)(1). This can only be done on the plaintiff’s request "and upon affidavit of the amount due." Id. The Setiks do not contend that this was not done. They contend that affidavits are inadequate to support a sum certain or a sum which can by computation be made certain.

Bank loans and promissory notes are classic examples of a sum certain. The parties have agreed to the loan’s terms and, when the loan remains unpaid, the amount due can be made certain by computation according to the loan’s agreed terms. See Federal Deposit Ins. Corp. v. Spartan Mining Co., 96 F.R.D. 677, 683 (S.D. W. Va. 1983) (affidavit was not deficient because it did not "show calculations by which the sum was derived" since it was "plain that the sum at issue is one that can be made certain by calculation through reference to the terms of the note and the schedule of payments"), aff’d, 731 F.2d 1134 (4th Cir. 1984).

The Setiks’ contention that the judgment was not for a sum certain thus lacks merit. It is also likely time-barred since this is a ground for relief that should have been raised, under subsection 60(b)(1), as a mistake. It cannot be sought under subsection 60(b)(6) if the time has passed to seek relief under 60(b)(1), since Rule 60(b)(6) is reserved for extraordinary circumstances not covered in any of the other Rule 60(b) subsections and cannot be used to circumvent the one-year time limit for motions brought under subsections (1), (2), and (3). FSM Dev. Bank v. Arthur, 15 FSM R. 625, 634 (Pon. 2008).

3. Claimed Loan Irregularities

The Setiks assert that various alleged loan irregularities entitle them to relief from judgment. These include alleged incorrect judgment amount, the 2013-2014 C-Star rental payments used to service, not the C-Star judgment but the RS Plaza in Chuuk, and the failure to apply Manny Setik’s credit life insurance to the loan balance. The Setiks assert that these irregularities warrant relief because they are the result of mistake, inadvertence, misrepresentation, or excusable neglect. As stated above, the trial court correctly ruled that a motion for relief on these Rule 60(b)(1), 60(b)(2), and 60(b)(3) grounds, is untimely.

Moreover, the Setiks do not dispute the bank’s assertion that it has since applied Manny Setik’s credit life insurance to the amount due and that that issue is resolved. We note that mere clerical errors in judgments, such as those of calculation, may be corrected under Rule 60(a) at any time. Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 444-45 (App. 1994). But the Setiks do not seek correction of the calculation of the judgment amount, they seek complete relief from the judgment.

That the 2013-2014 rental payments might have been diverted is not a ground for relief from judgments that were entered years before that diversion. At most, the Setiks would have an argument about the amount outstanding on the judgments.

4. Claimed Lack of Mortgage Coverage

The Setiks also contend that the mortgages held by the bank do not cover the land but are only for the chattels that were part of the C-Star Apartelle business. This claim thus seeks timely Rule 60(b)(1) relief since it seeks relief from the December 24, 2013 order in aid of judgment. But it is not true. There are, in the record, two mortgages, a chattel mortgage, executed August 14, 2001, and the mortgage on real property, executed November 16, 2001, by all the Setiks (most signing through a power of attorney granted to Manny Setik) after the Pohnpei Court of Land Tenure determinations of heirship were issued making them the landowners.

5. Claimed Due Process Violations

The Setiks make numerous claims of violations of their rights to due process and contend that these violations require not only the reversal of the July 1, 2015 order but also relief from the default judgments.

a. Claimed Lack of Service of Process

The Setiks now claim that the trial court lacked personal jurisdiction over them since they were not served the relevant complaint and summons and so never had notice of the court proceedings against them. The Setiks are correct that, for the trial court to have had personal jurisdiction over them, they each had to have been served the complaint and summons. Lee v. Lee, 13 FSM R. 252, 256 (Chk. 2005) (if a complaint and summons is not properly served on a defendant [service of process], the court does not have personal jurisdiction over that defendant). They are also correct that a court which lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant. Id. And, if a default judgment has been entered when the court lacked personal jurisdiction over the defendant, then that default judgment is void and relief can be sought under Rule 60(b)(4), for which there is no time limit to seek relief. FSM Dev. Bank v. Arthur, 15 FSM R. 625, 633 (Pon. 2008); Ruben v. Hartman, 15 FSM R. 100, 110 (Chk. S. Ct. App. 2007).

However, the Setiks did not raise this ground in their January 30, 2015 motion for relief from judgment. "Generally, the rule is that an issue not raised below will not be considered for the first time on appeal." Esiel v. FSM Dep’t of Fin., 19 FSM R. 590, 594 (App. 2014) (citing Pohnpei v. AHPW, Inc., 13 FSM R. 159, 161 (App. 2005)). Accordingly, we must reject this assignment of error outright. But, even if we were to consider it, this due process claim would fail because the bank has directed us to the places in the record where the returns of service on the Setiks are located and has included these its supplemental appendix.

b. Claimed Defects in Judge’s Assignment

The Setiks further claim that Temporary Justice Materne’s orders must all be vacated because she was not properly appointed to that position. They base this contention on the fact that there was no order of assignment filed in this case and that they first learned that Justice Materne was assigned to the case when she issued the July 1, 2015 order, and that did not give them a chance to challenge her assignment before those substantive rulings.

We must reject this contention. "The Chief Justice . . . by ray: .;.�. . g0;. give special assits ents to retired Supreme Court justices and judges of state and other courts. . . . Judicules e a be amended nded by statute." FSM Const. XI, ;&#16 Since ince a staa statute, 4 F.S.M.C. 104, already exists ists setting out the procedure for giving special assignments to retired Se Coustices and judgesudges of s of state and other courts, the Chief Justice must follow that procedure. A statute takes precedence over the procedural rules because, while the Chief Justice has the power to promulgate procedural rules, the rules may be amended by statute, and because the Chief Justice does not have the power to amend a statute, a Congressionally enacted procedural rule is valid. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 532, 539 (Yap 2013); People of Tomil ex rel. Mar v. M/V Mell Sentosa, 17 FSM R. 478, 479 (Yap 2011). That statute requires the Chief Justice to "give notice to the President and the Congress upon the appointment of any temporary Justice." 4 F.S.M.C. 104(3).

The Setiks do not dispute that this procedure was followed. Their contention is that not only did Acting Chief Justice Johnny have to give notice under 4 F.S.M.C. 104(3), but he also had to issue a separate order, filed in the trial division case, assigning the (consolidated) case to Justice Materne, and that his failure made all of her orders void since they did not have a chance to challenge her assignment before she issued substantive rulings.

We cannot agree. While the concurrent issuance of a separate order of assignment, filed in the relevant case, is undoubtedly the better practice, no law or rule requires it. We note that often a litigant will not know which judge has been assigned the case (although the litigant may expect a certain judge) until that judge either issues his or her first written order or appears on the bench at the case’s first hearing. We further note that that is when, if there are grounds for the motion, a litigant would usually move to disqualify the judge. We think it also might have been good practice for the newly assigned judge to first issue a short order to the parties offering them an opportunity to supplement their filings since circumstances may have changed in the seventeen months after the motions were filed. Again, this is not required.

c. Claimed Lack of Trial Court Jurisdiction

The Setiks also assert that Justice Materne lacked the jurisdiction to make the rulings she did because there was one appeal, Appeal Case No. P2-2014, already pending when she was assigned the case, and a second appeal, Appeal Case No. P4-2015,^[4] from her July 1, 2015 order, was pending when the auction sale was conducted and the title ordered transferred.

A notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal. Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, applications for stays pending appeal, taxation of costs on a judgment after notice of appeal filed, considering and denying a Rule 60(b) relief from judgment motions (but not granting one unless the case is remanded), and, since the mere filing of a notice of appeal does not affect a judgment’s validity, the trial court also retains jurisdiction to enforce the judgment, unless a stay has been granted. Department of the Treasury v. FSM Telecomm. Corp., 9 FSM R. 465, 467 (App. 2000); Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM R. 520, 522 (App. 1996); FSM Dev. Bank v. Ehsa, 19 FSM R. 128, 130 (Pon. 2013); FSM Dev. Bank v. Arthur, 16 FSM R. 132, 136-37, 140-42 (Pon. 2008).

The trial court denied a stay.^[5] No further stay was sought. The filing of a notice of appeal does not operate as a stay. FSM Dev. Bank v. Arthur, 16 FSM R. 132, 140 (Pon. 2008); Konman v. Esa, 11 FSM R. 291, 296 (Chk. S. Ct. Tr. 2002); see also FSM v. Petewon, 14 FSM R. 463, 468 (Chk. 2006); FSM v. Moses, 12 FSM R. 509, 511 (Chk. 2004). The trial court therefore had the jurisdiction to not only deny the Setiks’ Rule 60(b) motion for relief from judgment, but it also had the jurisdiction to enforce the money judgment by foreclosure of the C-Star Apartelle mortgages. The Setiks’ lack of jurisdiction claim has no merit.

d. Claimed Jurisdiction in Chuuk State Supreme Court

The Setiks further claim that the FSM Supreme Court trial division, Pohnpei venue, lacked the power to make orders concerning the C-Star Apartelle because that property was under the control of probate proceedings in the Chuuk State Supreme Court. Since this claim was unusual, we requested further briefing on it. We conclude that this claim contains errors of both law and fact.

The Setiks contend that once probate proceedings for Raymond Setik’s estate were opened in the Chuuk State Supreme Court, all property and possessions of Raymond Setik anywhere in the world came under that court’s control and jurisdiction, and that other courts outside Chuuk then could not exercise authority over their own land and real estate inside their own territory if that land or real estate had been owned by Raymond Setik. We cannot agree.

When a court exercises jurisdiction over land, it can only exercise that jurisdiction in the nature of an in rem proceeding. "’In rem’ proceedings encompass any action . . . in which esal purpose of e of suit is to determine title to or affect interests in specific property located within the territory over which court has jurisdiction." Green v. Wilson, 592 S.E.2d 579, 581 (N.C. Ct. App. 2004) (citing BLACK’S LAW DICTIONARY 793 (6th ed. 1990)). This in rem jurisdiction includes registration of land titles, 66 AM. JUR. 2D Registration of Land Titles § 2, at 667 (1973), mors, and, and probate proceedings involving land, see In re Nahnsen, 1 FSM R. 97, 103 (Pon. 1982). To be able to exercise in rem jurisdiction, the property over which the court isxercise jurisdiction must bust be physically present within the court’s territorial jurisdiction and under its control. In re Kuang Hsing No. 127, 7 FSM R. 81, 82 (Chk. 1995). Thus, no court located in Chuuk can exercise jurisdiction over land in Pohnpei. Only a court in Pohnpei can do that. See, e.g., Paciocco v. Young, Stern & Tannenbaum, P.A., 481 So.2d 39, 39 (Fla. Dist. Ct. App. 1985) (state court has no in rem jurisdiction over mortgages on real property in another state).

Even the Chuuk State Supreme Court, in one of its early Raymond Setik probate decisions, acknowledged that it did not have jurisdiction over Raymond Setik’s property outside the State of Chuuk. It held that "[t]here remains to the next [judge] assigned this case the more difficult process of completing an accurate inventory and appraisal of the estate, the opening of ancillary probate proceedings in Pohnpei, Guam and Hawai’i, and the distribution of the remaining assets of the estate." In re Estate of Setik, 12 FSM R. 423, 431 (Chk. S. Ct. Tr. 2004). The purpose of ancillary probate proceedings in Pohnpei, Guam, and Hawai’i is to "probate" Raymond Setik’s properties in those locations.

As a matter of fact, the "ancillary proceeding" for the C-Star Apartelle property has already been held. Since the C-Star Apartelle property was registered land (Raymond Setik had certificates of title for that property), that property was "probated" through an heirship proceeding in the Pohnpei Court of Land Tenure. On October 22, 2001, that court issued its decision and determined Raymond Setik’s heirs for the C-Star properties. On October 29, 2001, it issued the determination of heirship certificates for C-Star. Although certificates of title based on those determinations have not yet been issued (perhaps because the bank is still holding the old certificates, which must be surrendered before the new ones are issued), the time to appeal those determinations is long past.

Accordingly, we conclude that the pendency of probate proceedings in the Chuuk State Supreme Court has no bearing on the C-Star property or this case.

6. The Development Bank’s Status

The Setiks also claim that the bank does not meet the statutory definition of a bank under 29 F.S.M.C. 102(1). We can only ignore this contention. First, this issue was not raised below, and second, it is irrelevant. Congress created the FSM Development Bank, 30 F.S.M.C. 101 et seq., and gave it the power "to lend money either with or without security, and if with security upon such terms as may from time to time seem expedient." 30 F.S.M.C. 105(10). That is just what the bank did when it made the C-Star loan. Even if the Setiks prevailed on this point, it would not affect the validity of the bank’s judgments against them. The same may be said of the Setiks’ claim that the bank should not be "trying to make a profit." That is neither a ground for relief from judgment nor a meritorious defense.

7. Summary

The Setiks’ reasons were not sufficient to justify vacating the default judgments under the Rules generally available to them, Rule 60(b)(4) and 60(b)(6), and they failed to show a meritorious defense. Accordingly, we conclude that the trial court did not abuse its discretion when it denied the Setiks’ motion for relief from judgment.

B. Order Transferring Title

The Setiks contend that the order transferring the C-Star property title to Feliciano Perman is illegal because it was issued less than ten days after the bank made its motion to transfer title and because Perman is Justice Materne’s uncle. The bank contends that we lack jurisdiction to review that order because the Setiks timely filed a Rule 59 motion to reconsider the November 24, 2015 order transferring title and then filed a notice of appeal from the November 24, 2015 order before their Rule 59 motion was decided.

1. Our Jurisdiction

The bank is correct that if a timely Rule 59 motion is pending, any notice of appeal filed before the Rule 59 motion is decided is ineffective because "[a] notice of appeal filed before the disposition of any [Rule 59] motion[] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the [Rule 59] motion." FSM App. R. 4(a)(4). We will, however, disregard this since both the Setiks and the trial court erroneously labeled and treated the Setiks’ motion for reconsideration as a Rule 59 motion. A motion or a filing is what it is regardless of what the party filing it has labeled it. Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 435 (App. 2011); Berman v. Pohnpei Legislature, 17 FSM R. 339, 352 n.5 (App. 2011); McIlrath v. Amaraich, 11 FSM R. 502, 505-06 (App. 2003); FSM Dev. Bank v. Arthur, 16 FSM R. 132, 138 n.4 (Pon. 2008); Mori v. Hasiguchi, 19 FSM R. 222, 225-26 (Chk. 2013) (regardless of what a movant calls a motion, a court will look to the actual relief sought and decide the motion on the basis of what it actually is, not what it is labeled).

A Rule 59(e) motion is a motion to alter or amend a judgment, and must be made within ten days of the entry of judgment. The Setiks’ motion to reconsider did not seek to alter or amend the judgments in this case. The November 24, 2015 order, for which they sought reconsideration, was not a judgment, and it did not alter or amend the judgments already entered. The judgments in this case were entered much earlier in 2008 and 2010. The Setiks sought to alter or amend a post-judgment order transferring title. The Setiks’ motion to reconsider can be is a Rule 60(b) motion since it sought relief from a final order.

Appellate Rule 4(a)(4) makes a notice of appeal filed while a Rule 59 motion is pending a nullity and requires the filing of a new notice of appeal once the Rule 59 is decided, but it does not require a new notice of appeal if a pending Rule 60(b) motion is decided. Accordingly, we must reject the bank’s contention that we lack jurisdiction to review the November 24, 2015 order transferring title.

2. Order’s Timing

We cannot say that the trial court’s issuance of its order transferring title six days after the bank filed its motion was reversible error. That is because the December 24, 2013 order in aid of judgment required that "[a] Court order transferring title to the parcel including all buildings, fixtures, equipment, and other improvements on the parcel, shall be issued upon delivery of a cashier’s check in the full amount . . . payable to the Fve Dementpment Bank no later than ten (10) days after notice is given." Order in Aid of Judgment at 6 (Dec. 24, 2013). The November 24, 2015 order conformed to that order by being issued six days after delivery of the cashier’s check. Moreover, the Setiks do not contend that there were any procedural defects in the sale on which they could base a challenge to its outcome.

3. Judge’s Disqualification and Remedy

All FSM Supreme Court justices, including temporary justices while they sit, are subject to the FSM Judiciary Act. Goya v. Ramp, 14 FSM R. 305, 308 n.3 (App. 2006); Goya v. Ramp, 14 FSM R. 303, 304 n.1 (App. 2006). Under the Judiciary Act, an FSM Supreme Court justice must "disqualify h[er]self . . . (e) where [s]he or h[er] spouse, or a person within a close relationship to either of them, or the spouse of such a person is . . . (iii) known by the Justo e to have an interest that could be substantialfectethe outcome of thof the proe proceeding." 4 F.S.M.C. 124(2). The Judiciary Act also requires Supreme Court justices to "adhere to tandar the Code of Judi Judicial cial Conduct of the American Bar Association," 4 F.S.M.C. 122, and that Code defines close relationship as someone within the third degree of relationship. See Pohnpei Transfer & Storage, Inc. v. Shoniber, 20 FSM R. 492, 495 (Pon. 2016). An uncle is within the third degree of relationship.

Thus, when Justice Materne’s uncle, Feliciano Perman, became the winning bidder, a potential conflict emerged. (We note that if anyone else had been the winning bidder, this conflict could not have arisen. We also note that the conflict does not have retroactive effect it cannot affect Justice Materne’s orders before November 18, 2015.) Once the bank received Perman’s full payment, it prepared a motion to transfer title to him. When that motion was filed on November 18, 2015, or some time shortly thereafter, is when Justice Materne would, or should, have first known, or had actual knowledge, that a person in close relationship to her, her uncle, could be substantially affected by the proceeding. It was not until then that her disqualification could be an issue. She did not disqualify herself before issuing the order transferring title.

Although 4 F.S.M.C. 124 and the ABA Code of Judicial Conduct as made applicable to the FSM Supreme Court by 4 F.S.M.C. 122 define the circumstances that mandate the disqualification of FSM Supreme Court justices, those provisions neither prescribe nor prohibit any particular remedy for a violation of that duty. The United States federal courts, with a very similar statute, have noted that "[a] conclusion that a statutory violation occurred does not, however, end our inquiry. As in other areas of the law, there is surely room for harmless error . .&# . There need not not be a draconian remedy for every violation . . . ." Liljeberg v.tHealrvsServs. Action Corp.[1988] USSC 125; , 486 U.S. 847, 862[1988] USSC 125; , 108 S. Ct. 2194, 2203-04[1988] USSC 125; , 100 L. Ed. 2d 855, 873 (1988).988).

"A disqualified judge may perpurelisterasks. . . . An act is ministerisl rial rial when when the law requires that a duty be performed and leaves nothing to the exercise of discretion or judgment. Discretionary acts are those in which one has the right to determine between two or more courses of action. Simply put, an act which one must perform is ministerial, while an act which one may perform is discretionary." Burkett v. State, 196 S.W.3d 892, 895 (Tex. Ct. App. 2006) (citation omitted). A ministerial act is "[a]n act performed without the independent exercise of discretion or judgment." BLACK’S LAW DICTIONARY 28 (9th ed. 2009). Ministerial means "[o]f or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill." Id. at 1086. A disqualified judge "is not thereby prevented from making orders that are purely formal in character." 46 AM. JUR. 2D Judges § 230 (re. 1994). A disqualiqualified judge may also issue housekeeping orders. Moody v. Simmons, [1988] USCA3 1210; 858 F.2d 137, 143 (3d Cir. 1988).

It would seem to us that the order transferring title was in the nature of a ministerial or a housekeeping act. Justice Materne (or some other judge) did not have the discretion not to issue it, regardless of who the bank certified as the qualified winning bidder. Its prompt issuance once the successful qualified bidder had paid in full was mandated by the terms of Chief Justice Yinug’s December 24, 2013 order in aid of judgment. It followed the instructions in that order. There was no dispute that Perman was the winning bidder no claim that another person was the successful bidder, no dispute that he was a qualified bidder, and no dispute that he had paid in full, and, apparently, no dispute over whether the auction had been properly conducted.

Justice Materne did not have the discretion to name another person as the winning bidder, or to demand that the winning bidder pay a higher, or a lower price. She seems to have had no discretion at all. She did not have the right to determine between two or more courses of action. She had only one course of action available to her. She was required to issue a formal order to transfer title within ten days of the bank informing her that the auction had been conducted and that it had resulted in a qualified winning bidder, who had paid his bid amount in full. She was required to do this so that the Pohnpei Court of Land Tenure could then perform its duties. If another judge had been presented with the motion, we cannot see how the resulting order could differ. Accordingly, we hereby affirm the November 24, 2015 trial court order transferring title.

C. February 25, 2016 Order

Although Justice Materne’s February 25, 2016 order ostensibly just denied reconsidering her November 24, 2015 order transferring title, there was more involved than that. The Setiks appear to have raised, and Justice Materne ruled on, more issues than just the transfer of title, and her rulings involved some discretion. By this time, Justice Materne should have known that her uncle had a substantial interest that might be affected by future rulings. 4 F.S.M.C. 124(2)(e)(iii). She should also have realized that by this time her impartiality might reasonably be questioned. 4 F.S.M.C. 124(1). She should thus have recused herself and not ruled on the motion to reconsider.

She did not. We must therefore vacate the February 25, 2016 order, which as noted above was erroneously considered a Rule 59 motion. To the extent that we, in this opinion, have decided issues that were addressed in that order, our decision herein stands.

VI. CONCLUSION

Accordingly, we affirm the trial court’s denial of the Setiks’ motion for relief from judgment and its order transferring title, and we vacate the trial court’s February 25, 2016 order. The parties are to bear their own costs.

* * * *

---

^[1] This land consisted of two parcels numbered 023-A-06 and 025-A-158, located in Dolonier, Nett.

^[2] The Pohnpei Court of Land Tenure heirship proceedings determined that Marianne B. Setik, Manny Setik, Atanasio Setik, Vicky Setik Irons, Patricia Setik, Irene Setik Walter, Marleen Setik, Raymond Setik Jr., Eleanor Setik Sos, Joanita Setik Pangelinan, Meriam Setik, Christopher James Setik, Jermina Setik, and Areen Setik were tenants in common of the C-Star properties.

^[3] The Setiks do not dispute that the requirement that "the defendant has been defaulted for failure to appear," FSM Civ. R. 55(b)(1), was met.

^[4] Appeal Case No. P2-2014 was dismissed on November 1, 2016, for want of prosecution. Walter v. FSM Dev. Bank, 21 FSM R. 1, 4 (App. 2016). Appeal Case No. P4-2015 is now part of this appeal.

^[5] Since the motion for a stay only sought a stay while the Rule 60(b) motion was pending, and since the trial court had just denied the Rule 60(b) motion, it correctly denied the stay motion, too.