|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of the Federated States of Micronesia |
FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P12-2015
APPEAL CASE NO. P7-2016
APPEAL CASE NO. P9-2016
(Civil Action No. 2015-031)
MARIANNE B. SETIK, individually and as )
Administratrix of the ESTATE OF RAYMOND )
SETIK, and HEIRS OF RAYMOND SETIK, )
)
Appellants, )
)
vs. )
)
ANA MENDIOLA, individually and in her official )
capacity as President and Chief Executive Officer )
of FSM Development Bank; BRANDON TARA, )
Chief Financial Officer of FSM Development )
Bank; JOHN SOHL, in his official capacity as )
Chairman of the FSM Development Bank Board )
of Directors and as the Board Director )
representing Pohnpei State; NORA SIGRAH, )
individually and in her official capacity as Legal )
Counsel for FSM Development Bank; and FSM )
DEVELOPMENT BANK, )
)
Appellees. )
_____________________________________________ )
OPINION
Argued: August 11, 2017
Submitted: September 12, 2017
Decided: May 28, 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
Civil Procedure Parties; Civil Procedure Pleadings
In the complaint, the title of the action must include the names of all the parties, and every action must be prosecuted in the name
of the real party in interest. Setik v. Mendiola, 21 FSM R. 537, 549 (App. 2018).
Civil Procedure Parties; Civil Procedure Parties Substitution of
The trial court should have inquired into the identity of parties designated as "heirs," and required that they be named and joined
or dismissed since no action can be dismissed on the ground that it is not prosecuted in the name of the real party in interest until
a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution
of, the real party in interest. Setik v. Mendiola, 21 FSM R. 537, 549 & n.2 (App. 2018).
Civil Procedure Parties "John Doe"; Civil Procedure Pleadings
Just as anonymous defendants are greatly disfavored since "John Doe" defendants serve no purpose and trial courts should dismiss them
without prejudice, unnamed, pseudonymous plaintiffs are even more disfavored since defendants have a due process right to know who
is suing them. That is so they may prepare their defense and know against whom a final judgment will be res judicata. Setik v. Mendiola, 21 FSM R. 537, 550 (App. 2018).
Courts Judges; Courts Recusal Bias or Partiality
Litigants are not entitled to a judge of their own choosing; they are only entitled to an unbiased judge. Setik v. Mendiola, 21 FSM R. 537, 550 (App. 2018).
Courts Judges Temporary 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 a 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. Mendiola, 21 FSM R. 537, 550 (App. 2018).
Separation of Powers Judicial Powers; Statutes
A statute takes precedence over the procedural rules because, while the Chief Justice can 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. Setik v. Mendiola, 21 FSM R. 537, 550 (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, may undoubtedly be the better practice,
no law or rule requires it when the Chief Justice has appointed a temporary justice. Setik v. Mendiola, 21 FSM R. 537, 550-51 (App. 2018).
Courts Judges
Often a litigant will not know which judge will be assigned a case until that judge either issues his or her first written order or
appears on the bench for the case’s first hearing. Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Jurisdiction In Rem; Jurisdiction Territorial; Property
A court’s jurisdiction over land is 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. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Domestic Relations Probate; Jurisdiction In Rem; Jurisdiction Territorial; Property
In rem jurisdiction includes registration of land titles, mortgages, and probate proceedings involving land. 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. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Jurisdiction In Rem; Jurisdiction Territorial; Property
Land on Pohnpei is not physically present in the Chuuk State Supreme Court’s territorial jurisdiction. Thus, neither it, nor
any court in Chuuk, can exercise jurisdiction over any Pohnpei land. Only a court in Pohnpei can do that. Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Domestic Relations Probate
The only reason for ancillary probate proceedings in Pohnpei, Guam, and Hawaii would be to probate the decedent’s properties
in those places. Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Domestic Relations Probate; Property Registered Land
The only place to "probate" registered land in Pohnpei would be through an heirship proceeding in the Pohnpei Court of Land Tenure.
Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Constitutional Law Case or Dispute Standing; Domestic Relations Probate; Property Registered Land
A decedent’s estate ceased to own Pohnpei land once the Pohnpei Court of Land Tenure ruled on the heirship petition for that
land and the time to appeal that decision expired. Because the decedent’s estate does not have, and, since Pohnpei Court of
Land Tenure ruling, has not had, any interest in the property, it has no standing to seek the relief regarding that land. Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Domestic Relations Probate; Jurisdiction Territorial; Property
Land on Pohnpei cannot be tied up in a Chuuk probate proceeding. Setik v. Mendiola, 21 FSM R. 537, 551 (App. 2018).
Appellate Review Standard Civil Cases Abuse of Discretion; Judgments Relief from Judgment Independent Action
An appellate court reviews, under an abuse of discretion standard, a trial court’s grant or denial of relief in an independent
action to set aside a judgment. Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment Independent Action
An independent action is a rare and unusual case. Resort to an independent action may be had only rarely, and then only under unusual
and exceptional circumstances. Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment Independent Action
An independent action in equity to set aside a judgment must satisfy five essential elements: 1) a judgment which ought not, in equity and good conscience, to be enforced; 2) a good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of the defendant; and 5) the absence of any adequate remedy at law. Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment; Judgments Relief from Judgment Independent Action
Relief from a judgment may be sought either by a Rule 60(b) motion or by an independent action through filing a separate case. It
cannot be sought by both. Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment
It is proper to require a party to advance in the first Rule 60(b) motion all matters that were reasonably available at that time.
Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment
Successive Rule 60(b) motions for relief from judgment are impermissible unless the later motion is brought on a different ground.
Setik v. Mendiola, 21 FSM R. 537, 552 (App. 2018).
Judgments Relief from Judgment Independent Action
An independent action to set aside a judgment made after a Rule 60(b) motion is denied, should be permitted only if it is made on
a ground different from the ground in the denied Rule 60(b) motion. Setik v. Mendiola, 21 FSM R. 537, 553 (App. 2018).
Judgments Relief from Judgment Independent Action; Judgments Relief from Judgment Time Limits
If a Rule 60(b) motion for relief from judgment is denied solely as untimely, that denial does not act as res judicata precluding
an independent action since the denial was not on the merits. A Rule 60(b)(1) motion’s denial solely on the ground that the
absolute time limit of one year precluded consideration of the merits of the grounds presented does not preclude a prompt independent
action for relief in the same court. Setik v. Mendiola, 21 FSM R. 537, 553 (App. 2018).
Appellate Review Standard Civil Cases
An appellate court may affirm a trial court decision on a different theory or on different grounds when the record contains adequate
and independent support for that basis. Setik v. Mendiola, 21 FSM R. 537, 554 n.3 (App. 2018).
Civil Procedure Dismissal Before Responsive Pleading
When the allegations of a plaintiff’s own complaint demonstrate that its claims are subject to the statute of limitations defense,
the court may dismiss those claims on the statute of limitations ground, even though it is an affirmative defense. Setik v. Mendiola, 21 FSM R. 537, 554 (App. 2018).
Judgments Relief from Judgment Independent Action; Judgments Relief from Judgment Time Limits
For an independent action in equity to set aside a judgment there are no time limits; the general statutes of limitation do not apply.
Rule 60(b) permits an independent action and prescribes no time limitations for such action. In the absence of a controlling statute,
the only time limitation is the equitable doctrine of laches. Setik v. Mendiola, 21 FSM R. 537, 554 (App. 2018).
Judgments Relief from Judgment Independent Action; Judgments Relief from Judgment Time Limits
There is no time limit on when an independent action may be brought, but the doctrine of laches is applicable and undue delay may
bar relief. Setik v. Mendiola, 21 FSM R. 537, 554 (App. 2018).
Judgments Relief from Judgment
The older a judgment grows, the greater finality it should be accorded and the greater the burden on the party seeking to set it aside.
Setik v. Mendiola, 21 FSM R. 537, 554 (App. 2018).
Civil Procedure Default and Default Judgments; Civil Procedure Res Judicata; Judgments Final Judgment
Although a default judgment is not an adjudication on a claim’s merits, it is a final judgment with res judicata and claim preclusion
effect. Setik v. Mendiola, 21 FSM R. 537, 554-55 (App. 2018).
Civil Procedure Dismissal Before Responsive Pleading; Civil Procedure Res Judicata
Res judicata, although an affirmative defense, can be raised in a motion to dismiss made before an answer has been filed when the
prior action’s preclusive effect can be determined from the complaint’s face. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Civil Procedure Res Judicata; Judgments Relief from Judgment Independent Action
An underlying judgment’s res judicata effect is not a proper defense to, or an appropriate ground on which to grant a dismissal
of, an independent action because an independent action seeks to set aside a judgment in another case that is presumed to be final
and res judicata unless the independent action succeeds. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Civil Procedure Res Judicata; Judgments Relief from Judgment; Judgments Relief from Judgment Independent Action
The denial of a Rule 60(b) motion for relief from judgment may have res judicata effect on a subsequent independent action to set
aside a judgment, if the subsequent action is brought on the same ground as the earlier motion. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Property Personal; Torts Conversion
The elements of a conversion action are the plaintiff’s ownership and right to possession of the personalty, the defendant’s
wrongful or unauthorized act of dominion over the plaintiff’s property inconsistent with or hostile to the owner’s right,
and resulting damages. "Personalty" is personal property as distinguished from real property. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Property
Real property, or realty, is land and anything growing on, attached to, or erected on it, except anything that can be moved without
injury to the land. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Property; Torts Conversion
Realty real property cannot be "converted." Any such conversion claim is misconceived. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Civil Procedure Dismissal Before Responsive Pleading; Civil Procedure Pleadings
A plaintiff will not be precluded from relief merely because her lawyer has misconceived the claim’s proper legal theory. If
the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the
proper relief, the complaint is sufficient. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Property; Torts Conversion
A litigant’s "conversion" claim over real estate can be conceived as a quiet title claim. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Judgments Relief from Judgment Independent Action
When a decedent’s estate does not own the property and has no interest in it (since it has been "probated"), a cause of action
for interference with its ownership rights fails to state a claim on which the court could grant relief and does not constitute a
good defense to set aside the judgments. Setik v. Mendiola, 21 FSM R. 537, 555 (App. 2018).
Civil Procedure Dismissal; Civil Procedure Parties Official Capacity
When all actions, or inactions, complained of, were taken by persons in their capacities as bank officers, dismissal of them in their
individual capacities was proper. Setik v. Mendiola, 21 FSM R. 537, 556 (App. 2018).
Banks and Banking; Torts
Title 30, which governs the FSM Development Bank, does not give rise to a private cause of action for borrowers or others. Setik v. Mendiola, 21 FSM R. 537, 556 (App. 2018).
Torts Fraud
The elements of fraud or intentional misrepresentation are: 1) a knowing or deliberate misrepresentation by the defendant, 2) made
to induce action by the plaintiff, 3) with justifiable reliance by the plaintiff upon the misrepresentations, 4) to the plaintiff’s
detriment. Setik v. Mendiola, 21 FSM R. 537, 556 (App. 2018).
Civil Procedure Pleading With Particularity; Judgments Relief from Judgment Independent Action
Rule 9(b) requires that, in allegations of fraud, the circumstances constituting the fraud must be pled with particularity. When
fraud is alleged, particularity is a pleading requirement that applies with equal force to independent actions brought under Rule
60(b). Setik v. Mendiola, 21 FSM R. 537, 556 (App. 2018).
Interest and Usury
Usury is the exacting, taking, or receiving of an interest charge in an amount or at a rate in excess of that allowed by law for the
use of money or extension of credit. Setik v. Mendiola, 21 FSM R. 537, 556-57 (App. 2018).
Interest and Usury
In a commercial credit transaction, no person may directly or indirectly receive or charge interest which exceeds an annual percentage
rate of 24 percent. Setik v. Mendiola, 21 FSM R. 537, 557 (App. 2018).
Interest and Usury
In applying partial payments to an interest-bearing debt which is due, in the absence of an agreement or statute to the contrary,
the payment will be first applied to the interest due. Thus, at the start of a loan repayment, the bulk of a monthly payment is
applied to the accrued interest and the remaining amount goes to reducing the principal so that at the next monthly payment, if made
on time, a little less is needed to pay the accrued interest and a little more will go to reducing the principal. This is not usury
unless the interest rate (including fees) is itself higher than the statutory cap. Setik v. Mendiola, 21 FSM R. 537, 557 (App. 2018).
Banks and Banking; Civil Procedure Dismissal Before Responsive Pleading
The borrowers’ claim that the bank’s chairman of the board and members breached their fiduciary duties owed to the bank’s
shareholders, even if proven, cannot state a claim on which the borrowers could be granted relief. This is because a party cannot
raise third persons’ claims. A party may raise only its own claims and must assert its own legal rights and interests; it
cannot rest its claim to relief on third parties’ legal rights or interests. Setik v. Mendiola, 21 FSM R. 537, 557 (App. 2018).
Judgments Relief from Judgment Independent Action
Gross negligence and tortious interference with business relations and lost business opportunities and profits claims based on a decedent’s
estate owning the property and being under a probate court’s supervision so that the bank’s foreclosure wrongfully interferes
with their business, fail to state claims on which the court could grant relief and do not constitute a good defense to set aside
the bank’s judgments when the decedent’s estate does not own the property. Setik v. Mendiola, 21 FSM R. 537, 557-58 (App. 2018).
Judgments Relief from Judgment Independent Action
The absence of any one essential element of an independent action precludes relief. In particular, the failure to show the essential
element of a good defense, precludes relief. Setik v. Mendiola, 21 FSM R. 537, 558 (App. 2018).
Judgments Relief from Judgment Independent Action
The element requiring the absence of fault or negligence on the part of the party seeking to set aside a judgment is more stringent
in an independent action in equity than in a Rule 60(b) motion for relief. Setik v. Mendiola, 21 FSM R. 537, 558 (App. 2018).
Civil Procedure Pleadings Counterclaims and Cross-Claims; Judgments Relief from Judgment Independent Action
When, if the plaintiffs’ "causes of action" were not good defenses but rather separate claims, they would have been compulsory
counterclaims that would have had to have been raised as counterclaims in the answer. They cannot sit idly by while the bank’s
promissory note claim goes to a default judgment and then later raise the compulsory counterclaims as defenses warranting relief
in an independent action. Setik v. Mendiola, 21 FSM R. 537, 558 (App. 2018).
Courts Recusal Close Relationship
All FSM Supreme Court justices, including temporary justices while they sit, are subject to the FSM Judiciary Act, and, under that
Act, 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. Mendiola, 21 FSM R. 537, 558-59 (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.
Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Courts Recusal Close Relationship
When the justice’s uncle became the winning bidder of a court-ordered sale, a potential conflict emerged, although if virtually
anyone else had been the winning bidder, no conflict would have arisen. Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Courts Recusal Bias or Partiality; Courts Recusal Close Relationship
When the justice would, or should, have first known had actual knowledge that a person in close relationship to her, her uncle,
could be substantially affected by further substantive proceedings involving the property, there was now a conflict. Only then did
her disqualification become an issue. It was also when her impartiality might first reasonably be questioned. Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Courts Recusal Close Relationship
Disqualifying circumstances do not have retroactive effect when they could not have affected the justice’s orders beforehand
because until her uncle became the winning bidder, the justice would not have known that her uncle had an interest that the litigation
could substantially affect. Setik v. Mendiola, 21 FSM R. 537, 559 (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. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Courts Recusal
A disqualified judge is not thereby prevented from making orders that are purely formal in character, including issuing housekeeping
orders. Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Civil Procedure Injunctions
For a trial court to consider a motion for a temporary restraining order, there must be a verified complaint pending before the court.
Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Civil Procedure Injunctions
The trial court properly denied a motion for a temporary restraining order when the trial court had already dismissed the complaint,
and that complaint had not been verified. Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Civil Procedure Injunctions
If, instead of a temporary restraining order, a preliminary injunction is sought, the complaint does not need to be verified, but
the court still needs a pending complaint, not a complaint that has already been dismissed. Setik v. Mendiola, 21 FSM R. 537, 559 (App. 2018).
Civil Procedure Injunctions
When there is no pending case left because the complaint has already been dismissed, the denial of a temporary restraining order motion
is a purely formal housekeeping matter to tie up a loose end. Setik v. Mendiola, 21 FSM R. 537, 559-60 (App. 2018).
Civil Procedure Injunctions
An FSM Supreme Court trial division justice in one case does not have jurisdiction to set aside or overrule orders entered in a different
trial division case. Nor does a judge have jurisdiction to grant injunctive relief against a trial division judge’s acts in
another case. Setik v. Mendiola, 21 FSM R. 537, 560 (App. 2018).
Appellate Review Decisions Reviewable; Appellate Review Dismissal
An appellate court will normally dismiss an appeal for lack of jurisdiction when it is not from a final order because, although sanctions liability had been determined, the amount of those sanctions had not, but when a later appeal was from a final order (since it fixed the sanction amount) into which the earlier liability order merged, it did not matter whether the first appeal case was dismissed or consolidated with the later appeal case. Setik v. Mendiola, 21 FSM R. 537, 560 n.4 (App. 2018).
Appellate Review Parties; Civil Procedure Sanctions Rule 11
When Rule 11 sanctions are imposed on a party’s attorney, the sanctioned attorney should make the appeal, proceeding under his
or her own name as the real party in interest. Setik v. Mendiola, 21 FSM R. 537, 560 n.4 (App. 2018).
Civil Procedure Sanctions Rule 11; Courts Recusal Bias or Partiality; Courts Recusal Close Relationship
A disqualified justice should recuse herself rather than rule on a Rule 11 motion because it is neither a housekeeping nor a ministerial
matter, and because her impartiality might reasonably be questioned even though the Rule 11 motion could not substantially affect
her uncle’s interest. Setik v. Mendiola, 21 FSM R. 537, 560 (App. 2018).
Appellate Review Standard Civil Cases; Courts Recusal
When a judge has sat in violation of an express statutory standard for disqualification, the usual remedy is that the disqualified
judge’s rulings are, on appeal, to be vacated. Setik v. Mendiola, 21 FSM R. 537, 560 (App. 2018).
Civil Procedure Sanctions Rule 11; Courts
In order to be "controlling law," the precedent must be a binding precedent. A binding precedent is a precedent that a court must
follow. For example, a lower court is bound by an applicable holding of a higher court in the same jurisdiction. Setik v. Mendiola, 21 FSM R. 537, 560-61 (App. 2018).
Courts; Judgments
While trial division decisions are precedents, they are not binding precedents since they are only trial court decisions. They are
thus not "controlling law." Setik v. Mendiola, 21 FSM R. 537, 561 (App. 2018).
Civil Procedure Sanctions Rule 11
When the same counsel represented a defendant in an earlier case, but she did not appeal that adverse ruling, no binding precedent
was created, and counsel was free to pursue, and cannot be sanctioned under Rule 11 for the same tactic in another case, and if the
ruling in that case is again adverse, she may (if her client is willing) appeal that ruling for a definite and binding precedent,
one way or the other. Setik v. Mendiola, 21 FSM R. 537, 561 (App. 2018).
* * * *
COURT’S OPINION
LARRY WENTWORTH, Associate Justice:
This consolidated appeal arises from the trial court’s dismissal of an independent action to set aside a judgment, Setik v. Mendiola, 20 FSM R. 236 (Pon. 2015), and from orders imposing Rule 11 sanctions on the plaintiffs’ counsel for the filing of that independent action, Setik v. Mendiola, 20 FSM R. 320 (Pon. 2016). We affirm the trial court’s dismissal of the action, but reverse the imposition of Rule 11 sanctions. Our reasons follow.
I. BACKGROUND
A. Pre-litigation Events
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. After his demise in 1997, family members continued to operate the C-Star Apartelle business. A probate case 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 Raymond Setik’s Pohnpei real estate, including the C-Star Apartelle land. On October 29, 2001, that court issued its determinations of heirship, that is, of ownership. It ruled 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 ("the Setiks") were tenants in common of the C-Star property.
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.
B. Collection Cases Civil Actions Nos. 2007-008 and 2010-006
The C-Star Apartelle loan went into default. On January 30, 2007, the bank filed suit (docketed as Civil Action No. 2007-008) against the Setiks on the defaulted loan and to foreclose the mortgage. On February 1, 2008, the clerk entered a default judgment against Marianne B. Setik and Irene Setik Walter. And on January 25, 2010, the court entered a 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 (docketed as Civil Action No. 2010-006) against Meriam Setik, Christopher James Setik, Jermina Setik, and Areen Setik. On March 22, 2010, the court entered a default judgment against those four defendants.
The Setiks moved to set aside the judgment and dismiss the case on the ground that the FSM Supreme Court lacked subject-matter jurisdiction over mortgage foreclosure cases. On November 15, 2013, the trial court denied that motion. FSM Dev. Bank v. Setik, 19 FSM R. 233, 235 (Pon. 2013).
On December 24, 2013, Chief Justice Martin Yinug consolidated Civil Action No. 2007-008 and Civil Action No. 2010-006, and, based on a November 22, 2013 hearing, 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 a 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 the judgments in consolidated Civil Action Nos. 2007-008 and 2010-006. They contended that the trial court judgment(s) should be set aside because Manny Setik had paid for credit life insurance and it 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. Chief Justice Yinug took no action on these motions before he passed away.
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 consolidated Civil Action Nos. 2007-008 and 2010-006. This was done by letters to the President and Congress. On July 1, 2015, Temporary Justice Materne ruled. She denied the motion for relief from judgment, and granted the bank’s motion to substitute a new land sales agent to implement the December 24, 2013 order in aid of judgment. FSM Dev. Bank v. Setik, 20 FSM R. 85, 88-90 (Pon. 2015).
C. New Case Civil Action No. 2015-031
On August 3, 2015, Raymond Setik’s widow, Marianne B. Setik, individually and as Administratrix of the Estate of Raymond Setik, along with unnamed persons styled as "the Heirs of Raymond Setik,"[1] filed suit against the FSM Development Bank, its President, Ana Mendiola, and various other bank officers (hereinafter "the bank" collectively). The plaintiffs (hereinafter "Setik") pled as causes of action: conversion; misrepresentation and fraud; violation of FSM Code, Title 30; usury; breach of fiduciary duty, good faith, and fair dealing; gross negligence; and tortious interference with business opportunities, and sought as relief an injunction prohibiting the sale of the C-Star property; a judgment voiding the underlying promissory note; the release of all liens on the C-Star property; and an unspecified money damage claims. This was docketed as Civil Action No. 2015-031.
On September 4, 2015, the bank filed a motion to dismiss the complaint because it failed to state a claim on which relief could be granted since it did not meet the requirements for a Rule 60(b) independent action; since it was barred by Civil Procedure Rule 60(b), the res judicata doctrine, the statute of limitations, and the litigation privilege; since there were no factual allegations against the plaintiffs named as individual defendants; and since there were factual or legal deficiencies in the causes of action pled. The motion was supported by exhibits of orders in Civil Action No. 2007-008 and 2010-006.
On September 25, 2015, the bank filed a motion seeking Rule 11 sanctions because the plaintiffs’ complaint was frivolous, not well-grounded in fact, contrary to law, full of misrepresentations, and only interposed for the improper purpose of harassment and delay. It sought the award of reasonable attorney’s fees.
On October 9, 2015, Chief Justice Dennis K. Yamase assigned Civil Action No. 2015-031 to Palau Supreme Court Associate Justice Lourdes F. Materne as a temporary justice. A letter was sent notifying the President and Congress of this.
After Justice Materne, on October 15, 2015, granted Setik more time to respond, Setik filed, on October 20, 2015, an opposition to the bank’s motion to dismiss. And, on October 30, 2015, Setik filed an opposition to the bank’s Rule 11 sanctions motion.
On October 28, 2015, Setik filed a motion for a temporary restraining order seeking to enjoin the bank’s scheduled auction of the C-Star property and asked that the motion be heard by a judge resident on Pohnpei and not by Justice Materne in Palau. The bank conducted the C-Star auction on October 30, 2015.
On November 17, 2015, Justice Materne granted the bank’s motion to dismiss Civil Action No. 2015-031, holding that it was an independent action to set aside a judgment and that its filing was barred because the plaintiffs had already sought relief from judgment through Rule 60(b) motions, Setik v. Mendiola, 20 FSM R. 236, 241 (Pon. 2015); that res judicata and collateral estoppel barred the action, id. at 242-43; that the statute of limitations barred the action, id. at 243; and that the claims against the individual defendants were deficient, id. at 243-44.
D. More Civil Action Nos. 2007-008 and 2010-006
On November 18, 2015, the bank moved in Civil Action Nos. 2007-008 and 2010-006 for an order transferring the C-Star property title to the winning bidder, Feliciano Perman. On November 24, 2015, the trial court issued an order to transfer title to Perman.
E. More Civil Action No. 2015-031
On November 20, 2015, the trial court (in Civil Action No. 2015-031) denied Setik’s temporary restraining order motion as moot because Civil Action No. 2015-031 had already been dismissed. On December 23, 2015, Setik filed a notice of appeal, docketed as Appeal Case No. P12-2015, from the order of dismissal and from the order denying injunctive relief.
On March 4, 2016, the trial court granted the bank’s Rule 11 motion because Setik’s counsel should have been aware that a party can seek relief from a judgment either by a Rule 60(b) motion or an independent action, but not both, since she was counsel in an earlier case, FSM Dev. Bank v. Carl, 20 FSM R. 70 (Pon. 2015), where the court had ruled that way, and thus Setik’s counsel had not conducted a "reasonable inquiry" into whether the pleading was "warranted by existing law." Setik v. Mendiola, 20 FSM R. 320, 323-24 (Pon. 2016). The court ruled that since Setik’s counsel had been counsel in another case Salomon v. Mendiola, 20 FSM R. 138, 142 (Pon. 2015), in which the court had dismissed FSM Development Bank officials as individual defendants because all their acts had been done as bank employees, she should have known not to file such claims. Id. at 326-27.
The trial court held that the claims were frivolous since the same parties asserted the same claims involving the same land, were represented by the same counsel, and repeatedly asserted previously denied theories. Id. at 327 (citing Nahnken of Nett v. Pohnpei, 7 FSM R. 171, 180 (Pon. 1995)). The trial court concluded that, under a clear and convincing analysis, the counsel’s conduct was vexatious and tantamount to bad faith, and thus merited Rule 11 sanctions. Id. at 327-28 (citing In re Sanction of Woodruff, 10 FSM R. 79, 88 (App. 2001)). Concluding that plaintiff’s counsel had not made a reasonable inquiry into whether the complaint was "well grounded in fact and warranted by existing law" and that the complaint was interposed for the improper purpose of causing unnecessary delay, the trial court imposed Rule 11 sanctions on plaintiffs’ counsel. Id. at 328-29.
On March 8, 2016, Setik filed a notice of appeal from the March 4, 2016 order. This was docketed as Appeal Case No. P7-2016.
On April 26, 2016, the trial court rejected Setik’s contention that the court no longer had jurisdiction over the Rule 11 sanctions because of the March 8, 2016 notice of appeal, and awarded $2,687.50 in attorney’s fees. An appeal from this order was filed on May 13, 2016, and docketed as Appeal Case No. P9-2016.
Appeal Cases Nos. P12-2015, P7-2016, and P9-2016 were consolidated on February 2, 2017.
II. ISSUES PRESENTED
Setik contends that the trial court erred
1) when, on November 17, 2015, it dismissed Civil Action No. 2015-031;
2) when, on November 20, 2015, it denied the motion for a temporary restraining order;
3) when, on March 4, 2016, it imposed Rule 11 sanctions on the plaintiffs’ counsel for filing Civil Action No. 2015-031;
4) when, on April 26, 2016, it set the dollar amount of the Rule 11 sanctions it had already imposed; and
5) because the issuance of those four orders violated the Setiks’ rights under state law and common law.
III. ANALYSIS
A. Preliminary Issues
1. Parties Plaintiff
We have concerns about the naming of the plaintiffs. The case caption lists them as "Marianne B. Setik, individually and as Administratrix of the Estate of Raymond Setik, and Heirs of Raymond Setik." The complaint’s text describes the plaintiffs other than Marianne B. Setik as "Plaintiffs Heirs of Raymond Setik are the legal heirs of the late Raymond Setik who at all times relevant herein are citizens of the Federated States of Micronesia." Compl. at 2 (Aug. 3, 2015). These heirs are unnamed.
Our rules require that "[i]n the complaint the title of the action shall include the names of all the parties," FSM Civ. R. 10(a), and that "[e]very action shall be prosecuted in the name of the real party in interest," FSM Civ. R. 17(a). That was not done here. The "Heirs of Raymond Setik" is not a party’s name. The names of the actual "Heirs of Raymond Setik" do not appear anywhere neither in the complaint’s caption nor in its text. This is not a class action where only the class representatives are named and the class otherwise described. Nor could it be, since it seeks to set aside judgments in another case with specifically named defendants. There is no reason why those defendants who are plaintiffs here could not be named. We expect they could be the same, or some of the same, persons as those determined in October 2001, by the Pohnpei Court of Land Tenure to be the C-Star owners, but the bank has submitted the affidavit of one of those persons disclaiming any interest in this lawsuit. If this lawsuit had gone forward, the trial court should have inquired into the heirs’ identity, and required that they be named and joined or dismissed.[2]
Just as anonymous defendants are greatly disfavored since "John Doe" defendants serve no purpose and trial courts should dismiss them without prejudice, Berman v. Pohnpei, 17 FSM R. 360, 366 n.1 (App. 2011), unnamed, pseudonymous plaintiffs are even more disfavored since defendants have a due process right to know who is suing them. That is so they may prepare their defense and know against whom a final judgment will be res judicata. The FSM Supreme Court has allowed a plaintiff pseudonym in only one reported case, and that was when strong privacy concerns were involved. In re Property of Doe, 6 FSM R. 606, 607 (Pon. 1994) (anonymity imposed to avoid unwanted and unwarranted public attention directed towards a minor that would do little to aid in her mental and physical recovery, while doing much to impede it). The pseudonym used here the heirs of Raymond Setik was thus inappropriate.
We take no present action based on this concern, but mention it here as future guidance for counsel.
2. Justice Materne’s Appointment
Setik asserts that Temporary Justice Materne was not properly appointed to that position, since no order of assignment was filed in Civil Action No. 2015-031. She also asserts that she first learned that Justice Materne was assigned to the case when Justice Materne issued the November 17, 2015 order of dismissal, so that she did not have a chance to challenge Justice Materne’s assignment before that substantive ruling.
We give no credence to Setik’s assertion that she first learned of Justice Materne’s assignment from the November 17, 2015 order of dismissal. Justice Materne’s assignment should have been apparent from her signatures on the trial court’s October 15, 2015 orders ruling on Setik’s requests for enlargements. Furthermore, Setik’s October 28, 2015 restraining order motion asked that it not be heard by Justice Materne but by a Pohnpei resident judge.
We see no reason to inquire into Chief Justice Yamase’s reasons for assigning the case to Justice Materne, and note that "litigants are not entitled to a judge of their own choosing; they are only entitled to an unbiased judge." FSM v. Kansou, 12 FSM R. 637, 640 (Chk. 2004).
We must also reject Setik’s contention that the assignment was invalid. "The Chief Justice . .&# by rule may: . .�. . giecialgassignments to reto retired Supreme Court justices and judges of state and other courts. . .Judicial rules may be a be amended by statute." FSM Const. art. XI, § 9. Sa sta 4 F.S.M.C, 104, 104, alreaalready exists setting out a procedure for giving special assignments to retired Supreme Court justices and judf state and other courts, the Chief Justice must follow that procedure. A statute takes pres precedence over the procedural rules because, while the Chief Justice can promulgate procedural rules, the rules may be amended by statute, FSM Const. art. XI, &##160;9(f), and band because the Chief Justice does not have the power to amend a statute, a Congressionally enacted procedural rs valid. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 53R. 532, 539 (Yap 2013); People of Tomil ex rel. Mar v. M/V Mell Sentosa, 17 FSM R. 478, 479 (Yap 2011). The 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).
Setik does not dispute that this was done. Setik’s contention is that not only did Chief Justice Yamase have to give notice under 4 F.S.M.C. 104(3), but that he also had to issue a separate order, filed in Civil Action No. 2015-031, assigning it to Justice Materne, and that his failure to do so made all of her orders void.
We cannot agree. While the concurrent issuance of a separate order of assignment, filed in the relevant case, may undoubtedly be the better practice, no law or rule requires it. Often a litigant will not know which judge will be assigned a case until that judge either issues his or her first written order (that is what we think happened here when Justice Materne issued her October 15, 2015 orders) or appears on the bench for the case’s first hearing.
3. Raymond Setik’s Estate and Jurisdiction over Real Property
Although Marianne B. Setik certainly has standing to challenge the judgment entered against her personally, we doubt whether she has any standing in her capacity as Administratrix of the Estate of Raymond Setik. No judgment was entered against the Estate of Raymond Setik, so there is no judgment against it to set aside.
Setik contends that the C-Star property is tied up in the Chuuk State Supreme Court probate proceeding, but that is not so. A court’s jurisdiction over land is in the nature of an in rem proceeding. "’In rem’ proceedings encompass any action . . . ich esal purp purpose of e of suit is to determine title to or affect interests in specific property located within the territory over which court has jurisdicti Gv. Wilson, 592 S.E.2d 579, 581 (N.C. Ct. App. App. 2004 2004) (citing BLACK’S LAW DICTIONARY 793 (6th ed. 1990)). In rem jurisdiction includes registration of land titles, 66 AM. JUR. 2D Registration of Land Titles § 2, at 667 (1973)tgages, and, and probate proceedings involving land, see In re Nahnsen, 1 FSM R. 97, 103 (Pon. 1982). To exerciseem jurisdiction, the property over which the court is to exercise jurisdiction must be phys 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). Land on Pohnpei is not physically present in the Chuuk State Supreme Court’s territorial jurisdiction. Thus, neither it, nor any court in Chuuk, can exercise jurisdiction over C-Star or any other Pohnpei land. 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).
The Chuuk State Supreme Court has acknowledged its lack of jurisdiction over Raymond Setik’s property outside of Chuuk. It held that "[t]here remains . . . the dift proc process of s of completing an accurate inventory and appraisal of the estate, the opening of ancillary probate proces in ei, Guam and Hawai’i, and the distribution of the remaining assets of the ethe estatestate." In re Estate of Setik, 12 FSM R. 423, 431 (Chk. S. Ct. Tr. 2004). The only reason for ancillary probate proceedings in Pohnpei, Guam, and Hawaii would be to "probate" Raymond Setik’s properties in those places.
The Pohnpei "ancillary" probate proceeding for the C-Star Apartelle property had already been opened and concluded. The C-Star Apartelle property is registered land. Raymond Setik had certificates of title for that property. Therefore, the only place to "probate" that property would be through an heirship proceeding in the Pohnpei Court of Land Tenure. That was done.
On October 22, 2001, that court issued its decision determining Raymond Setik’s heirs for the C-Star properties. On October 29, 2001, it issued the determination of heirship certificates for the C-Star properties. The time to appeal those determinations is long past. They are final. The Raymond Setik’s estate ceased to own the C-Star property once the Pohnpei Court of Land Tenure ruled on the heirship petition and the time to appeal that decision expired. It does not now have, and, since October 2001, has not had any interest in the C-Star property. It thus has no standing to seek the relief sought in Civil Action No. 2015-031. The C-Star property is not tied up in a Chuuk probate proceeding.
4. Civil Action No. 2015-031’s Nature
The bank moved to dismiss the trial court case because it was an independent action to set aside the Civil Action Nos. 2007-008 and 2010-006 judgments and relief had already been sought from those judgments by means of Rule 60(b) motions, and denied. The trial court granted dismissal on this (and other) grounds. The parties, at oral argument, acknowledged that Civil Action No. 2015-031 was such an independent action. We review, under an abuse of discretion standard, a trial court’s grant or denial of relief in an independent action to set aside a judgment. Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657-58 (App. 2009).
An independent action is a rare and unusual case. "’Resort to an independent action may be had only rarely, and then only under unusual and exceptional circumstances.’" FSM Dev. Bank v. Arthur, 15 FSM R. 625, 636 (Pon. 2008) (quoting 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2at 397-98 (2d ed. 1995)).<5)).
An independent action in equity to set aside a judgment must satisfy five essential elements: 1) a judgment which ougt, in equity and good conscience, to be enforced; 2) a good good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of the defendant; and 5) the absence of any adequate remedy at law.
Arthur, 16 FSM R. at 659. Setik sought not only that the bank’s judgments be set aside, but also an order preventing the bank from exercising its right to foreclose the C-Star mortgage based on those judgments.
B. November 17, 2015 Order of Dismissal
1. Independent Action Subsequent to a Rule 60(b) Motion
Setik contends that the trial court wrongfully dismissed the independent action for relief from judgment. Setik asserts that the complaint did state claims for which the court can grant relief because Rule 60(b) did not bar the complaint and because the complaint was adequately pled.
a. Whether Subsequent Independent Action is Permissible
"Relief from a judgment may be sought either by a Rule 60(b) motion or by an independent action through filing a separate case. It cannot be sought by both." FSM Dev. Bank v. Arthur, 15 FSM R. 625, 636 (Pon. 2008) (having chosen to raise the issue by motion, a party does not have the right to proceed for the same relief by independent action) (citing Goodyear Tire & Rubber Co. v. H.K. Porter Co., [1975] USCA6 644; 521 F.2d 699, 700 (6th Cir. 1975)). And it is "proper to require a party to advance in the first [Rule 60(b) motion] all matters that were reasonably available at that time." 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4447, at 324 (2d e02).
Thus, successive Rule 60(b) motions for relief from judgment are impermissible unless the later motion is brought on a different ground.
See, e.g., Savage v. Btacola, 404 Fed. Apppp’x 568, 570 (3d Cir. 2010) (if court determines that second Rule 60(b) motion is based on the same ground
as the first, it may deny the second motion on that ground); Gordon v. Monson, 239 Fed. App’x 710, 714 (3d Cir. 2007) (when trial court has already rejected arguments that judgment is void for lack of
due process, the court need not consider anew a second motion on the same ground); United States v. Minson, 39 Fed. App’x 438, 440 (7th Cir. 2002) ("The denial of a successive Rule 60(b) motion that merely offers facts that were available
at the time of the earlier post-judgment motion is generally not an abuse of discretion."); Servants of the Paraclete v. Does, [2000] USCA10 22; 204 F.3d 1005, 1012 (10th Cir. 2000) ("[a]bsent extraordinary circumstances . . . the for econsecond [Rule[Rule 60(b)] motion must not have been
available at the time the first motion was filed," but a motion made less than ten days after a denial is a motion to reconsider);
[1993] USCA5 1373;
Therefore, an independent action to set aside a judgment made after a Rule 60(b) motion is denied, should be permitted only if it is made on a ground different from the ground in the denied Rule 60(b) motion. Locklin v. Switzer Bros., Inc., [1964] USCA7 232; 335 F.2d 331, 334 (7th Cir. 1964) (Rule 60(b) provides for alternative, not cumulative methods of relief); Hughes v. McMenamon, 379 F. Supp. 2d 75, 79 (D. Mass. 2005) ("Res judicata applies to successive Rule 60(b) motions and independent Rule 60(b) actions" and a Rule 60(b) motion has preclusive effect on a subsequent independent Rule 60(b) action based on same allegations).
But, "if a Rule 60(b) motion for relief from judgment is denied solely as untimely, that denial does not act as res judicata precluding an independent action since the denial was not on the merits." Arthur v. Pohnpei, 16 FSM R. 581, 596 (Pon. 2009) (citing Caputo v. Globe Indem. Co., 41 F.R.D. 239, 240-41 (E.D. Pa. 1966)). A Rule 60(b)(1) motion’s denial "solely on the ground that the absolute time limit of one year precluded consideration of the merits of the grounds presented . . .s] noclude a pe a prompt impt independent action for relief in the same court." 18A WRIGHT, MILLER, & COOPER, supra,7;“, at 324 n.4 (also citing Caputo v. Globe Indem. Co., 41 F.R.D. 239 (E.D (E.D. Pa.. Pa. 1966)).
b. Setik’s Independent Action to Set Aside Judgments
The July 1, 2015 denial of relief from judgment was the Setiks’ second Rule 60(b) motion for relief from judgment. The first Rule 60(b) motion was brought on the ground that the court lacked jurisdiction and that the bank had failed to follow the Pohnpei foreclosure statute, 41 Pon. C. § 6-125(3). Fv. Bank v. S v. Setik, 19 FSM R. 233, 235 (Pon. 2013). The second was brought on multiple grounds, which were denied as unt because they were brought under Rule 60(b) subsections (1), (2), and (3). FSM Dev. Ban. Bank v. Setik, 20 FSM R. 85, 88 (Pon. 2015). The time limit for the remaining ground, "any other reason justifying relief," was only within a "reasonable time," but was rejected because it not only was not justified, but also because no meritorious defense was shown. Id. at 88-89.
Setik promptly filed this independent action after the Rule 60(b) motion’s denial on the basis that the one-year limit precluded relief. That would be permissible if those grounds were unavailable when the first Rule 60(b) motion was made. That issue was not briefed. Since we may adequately resolve this appeal case on the issues that were briefed, we will turn to those issues.
Setik’s "causes of action" are synonymous with the Rule 60(b) requirement that the movant have a meritorious defense and also with an independent action’s essential element that there be a good defense to the alleged cause of action on which the judgment is founded. We now turn first to the other grounds for dismissal statute of limitations and res judicata and then to the Setik’s causes of action to determine whether a good defense to the Civil Action Nos. 2007-008 and 2010-006 judgments exists, that is, whether Setik’s causes of action state a claim upon which the trial court could have granted relief.[3]
2. Statute of Limitations
Setik contends that the trial court erred when it ruled that the action was barred by the applicable statute of limitations of either two years or six years. She argues that her causes of action all accrued recently, within the applicable time limits. Setik further contends that the bank waived this defense since it is an affirmative defense that must be pled in an answer and the bank did not file an answer. However, when the allegations of a plaintiff’s own complaint demonstrate that its claims are subject to the statute of limitations defense, the court may dismiss those claims on the statute of limitations ground, even though it is an affirmative defense. Palikkun v. FSM Social Sec. Admin., 19 FSM R. 314, 317 (Kos. 2014); Segal v. National Fisheries Corp., 11 FSM R. 340, 342 (Kos. 2003).
Nevertheless, we conclude that Civil Action No. 2015-031 was not barred by the statute of limitations, but not for the reason Setik asserts. This was an independent action in equity to set aside a judgment. There are no time limits on independent actions; the general statutes of limitation do not apply. 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.83, at 60-262 (3d ed. 2015) ("[n]o court has ever suggested any statute of limitation that would apply to this type of equitable action"). Rule 60(b) "permits an independent action and pibes no time limitations for such action. In the absence once of a controlling statute, the only time limitation is the equitable doctrine of laches." Crosby v. Mills, [1969] USCA10 222; 413 F.2d 1273, 1276 (10th Cir. 1969). "There is no time limit on when an independent action may be brought, but the doctrine of laches is applicable and undue delay may bar relief." 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2868, at 563-64 (3d2012) (f2) (footnote omitted).
Since the trial court did not consider laches in its analysis, we have nothing to review on that point. But we do noat a court should keep in mind "the fundamental principle tple that the older a judgment grows, the greater finality it should be accorded and the greater the burden on the party seeking to set it aside." 12 JAMES WM. MOORE ET AL., supra, § 60][b][iii], at 60-249.
.3. Res Judicata
Setik also contends that res judicata is inapplicableivil Action No. 2015-031 because the Civil Action Nos. 2007-008 and 2010-006 judgments were were default judgments, in which none of the issues were litigated, and thus were not judgments on the merits and because res judicata is an affirmative defense that must be pled in an answer and the bank never filed an answer.
We disagree. Although a default judgment is not an adjudication on a claim’s merits, it is a final judgment with res judicata and claim preclusion effect. Mori v. Hasiguchi, 17 FSM R. 630, 644 (Chk. 2011); see also Ittu v. Charley, 3 FSM R. 188, 191 (Kos. S. Ct. Tr. 1987). And, res judicata, although an affirmative defense, can be raised in a motion to dismiss made before an answer has been filed when the prior action’s preclusive effect can be determined from the complaint’s face. Chuuk Health Care Plan v. Waite, 20 FSM R. 282, 284-85 (Chk. 2016).
Nevertheless, the underlying judgment’s res judicata effect is not a proper defense to, or an appropriate ground on which to grant a dismissal of, an independent action. An independent action seeks to set aside a judgment in another case that is presumed to be final and res judicata unless the independent action succeeds. Thus, since Civil Action No. 2015-031 was an independent action to set aside judgments, the underlying judgments’ res judicata effect cannot apply. (To the extent it may have been some other form of action, it could apply.) But, as discussed above, pt. III.B.1, the denial of a Rule 60(b) motion for relief from judgment may have res judicata effect on a subsequent independent action to set aside a judgment, if the subsequent action is brought on the same ground as the earlier motion.
4. Failure to State a Claim on Causes of Action
We now turn to the various "causes of action" or the "good defenses" upon which Setik claims the Setiks would have prevailed if they had been raised in the bank’s lawsuits against them.
a. Conversion
Setik alleges that the bank "converted" the C-Star property. The elements of an action for conversion are the plaintiff’s ownership and right to possession of the personalty, the defendant’s wrongful or unauthorized act of dominion over the plaintiff’s property inconsistent with or hostile to the owner’s right, and resulting damages. Ihara v. Vitt, 19 FSM R. 595, 602 (App. 2014). "Personalty" is "[p]ersonal property as distinguished from real property." BLACK’S LAW DICTIONARY 1260 (9th ed. 2009). Real property, or realty, is "[l]and and anything growing on, attached to, or erected on it," except anything that can be moved without injury to the land. Id. at 1337, 1379. C-Star is not personalty. It is realty real property. Realty, such as C-Star, cannot be "converted." Setik’s C-Star conversion claim is thus misconceived.
But a plaintiff will not be precluded from relief merely because her lawyer has misconceived the claim’s proper legal theory. Semwen v. Seaward Holdings, Micronesia, 7 FSM R. 111, 114 (Chk. 1995). If the complaint shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief, the complaint is sufficient. Id.
Setik’s conversion claim can be conceived as a quiet title claim or a claim to void the bank’s mortgage on C-Star. Setik bases the "conversion" cause of action on the bank’s mortgage foreclosure of the C-Star property since, in her view, that property is an asset of Raymond Setik’s estate under the Chuuk state probate court’s control, and the bank’s acts of dominion over that property are inconsistent with the rights of Raymond Setik’s estate. As discussed above, see pt. III.A.3, the Estate of Raymond Setik does not own the C-Star property and has no interest in it.
Accordingly, this cause of action fails to state a claim on which the court could grant relief and therefore does not constitute a good defense to set aside the bank’s judgments.
b. Against Persons in Their Individual Capacities
The trial court dismissed Setik’s claims against certain defendants (the bank’s President, Ana Mendiola, and its counsel, Nora Sigrah) alleged to be individually liable. The trial court held that since both were acting on the bank’s behalf and within the scope of their employment and since Setik was precluded from bringing Civil Action No. 2015-031 against the bank on several grounds, the claims leveled against these defendants must also fall. Mendiola, 20 FSM R. at 243-44.
Setik contends that the dismissal was improper because, in her view, the bank’s wrongful actions in "converting" the assets of Raymond Setik’s estate were conducted by these two individuals so therefore they should be held personally liable.
Our review of the Civil Action No. 2015-031 complaint reveals that it does not allege any actions taken, or omitted, by Sigrah or Mendiola in their personal capacities. All actions, or inactions, complained of, they took in their capacities as bank officers. Dismissal of them in their individual capacities was thus proper. George v. Palsis, 19 FSM R. 558, 571 (Kos. 2014). Furthermore, as discussed above, those actions did not constitute the "conversion" of assets of Raymond Setik’s estate since his estate did not own the C-Star property. Accordingly, since the complaint fails to state a claim against Mendiola and Sigrah in their personal capacities, we affirm their dismissal.
c. Alleged Title 30 Violations
Setik pled a cause of action based on the bank’s alleged violations of Title 30 and its public policy. But Title 30, which governs the FSM Development Bank, does not give rise to a private cause of action for borrowers or others. FSM Dev. Bank v. Jonah, 13 FSM R. 522, 523 (Kos. 2005); FSM Dev. Bank v. Mudong, 10 FSM R. 67, 76-77 (Pon. 2001). Thus, even if the bank violated Title 30 or acted contrary to Title 30’s enunciated public policy, Setik’s claims based on Title 30 do not state a claim on which the court may grant a private party relief. It is thus not a good defense to set aside the bank’s judgments.
d. Misrepresentation and Fraud
Setik pled misrepresentation, unconscionability, and fraud. The elements of fraud or intentional misrepresentation are: 1) a knowing or deliberate misrepresentation by the defendant, 2) made to induce action by the plaintiff, 3) with justifiable reliance by the plaintiff upon the misrepresentations, 4) to the plaintiff’s detriment. Arthur v. Pohnpei, 16 FSM R. 581, 597 (Pon. 2009). Rule 9(b) requires that in allegations of fraud, the circumstances constituting the fraud must be pled with particularity. Pohnpei v. Kailis, 6 FSM R. 460, 462 (Pon. 1994). When fraud is alleged, particularity is a pleading "requirement that applies with equal force to independent actions brought under Rule 60(b)." Hughes, 379 F. Supp. 2d at 80 (citing Vance v. United States, 60 Fed. App’x 236, 238 (10th Cir. 2003); Madonna v. United States, [1989] USCA2 572; 878 F.2d 62, 66 (2d Cir. 1989)). The Civil Action No. 2015-031 complaint does not plead fraud or misrepresentation with the required particularity. Setik’s fraud and misrepresentation allegations do, however, mention the bank’s alleged failure to apply the late Manny Setik’s credit life insurance to the loan, but that matter had been resolved to the Setiks’ benefit. Setik, 20 FSM R. at 88 (Manny Setik’s credit life insurance proceeds of $83,333.26 credited to the outstanding judgment principal).
Accordingly, this cause of action fails to state a claim on which the court could grant relief and therefore does not constitute a good defense to set aside the bank’s judgments.
e. Usury
Setik alleged that the bank committed usury. "’Usury’ is the exacting, taking, or receiving of an interest charge in an amount or at a rate in excess of that allowed by law for the use of money or extension of credit." 34 F.S.M.C. 202(13). Since the C-Star loan appears to be a commercial transaction to keep the C-Star Apartelle business running, the commercial credit rate would apply. "In commercial credit transactions, no person may directly or indirectly receive or charge interest which exceeds an annual percentage rate of 24 percent." 34 F.S.M.C. 204.
The promissory note on which the Civil Action Nos. 2007-008 and 2010-006 judgments are based, by its terms, bears an annual interest rate of nine percent. Setik pled that the actual interest charged "far exceeded the usury statutory caps." It is unclear exactly how Setik determined this, but it seems that the contention is based on monthly payments that allocated a greater portion toward the loan interest than the loan principal.
This, by itself, would not make a loan usurious. That is because "[i]n applying partial payments to an interest-bearing debt which is due, . . . i absef an agan agreementement or statute to the contrary, the payment will be first applied to the interest due." 45 AM. JUR. 2D Interest and Usury ټ75. ed. 1999). Thus, at the start of a loan repaymepayment, ent, the bulk of a monthly payment is applied to the accrued interest and the remaining amount goes to reducing the principal so that at the next monthly payment, if made on time, a little less is needed to pay the accrued interest and a little more will go to reducing the principal. This is not usury unless the interest rate (including fees) is itself higher than the statutory cap. The payments, if they have been made on time, will eventually cover more principal than interest.
Accordingly, the usury cause of action fails to state a claim on which the court could grant relief and therefore does not constitute a good defense to set aside the bank’s judgments.
f. Breach of Fiduciary Duty, Good Faith, and Fair Dealing
Setik pled that the bank’s chairman of the board and members "breached their fiduciary duties owed to the bank’s shareholders (government/public), to conduct diligent supervision of the bank’s management, legal counsel and staff in the servicing of loan and collection." Compl. at 22 (Aug. 3, 2015).
This, even if proven, cannot state a claim on which the Setiks could be granted relief. This is because a party cannot raise third persons’ claims. A party may raise only its own claims and must assert its own legal rights and interests; it cannot rest its claim to relief on third parties’ legal rights or interests. FSM v. Udot Municipality, 12 FSM R. 29, 40 (App. 2003) ("party generally must assert its own legal rights and interests, and cannot rest its claim to relief on the legal rights or interests of third parties"); Sipos v. Crabtree, 13 FSM R. 355, 365 (Pon. 2005) ("party cannot raise the claims of third persons; he may raise only his own claims"); Eighth Kosrae Legislature v. FSM Dev. Bank, 11 FSM R. 491, 497, 500 (Kos. 2003) (petitioner generally must assert its own legal rights and interests and cannot rest its claim to relief on third parties’ legal rights or interests); College of Micronesia-FSM v. Rosario, 10 FSM R. 175, 188 (Pon. 2001) (defendant cannot defeat a plaintiff’s summary judgment motion by raising a third party’s potential claim), aff’d, 11 FSM R. 355, 360 (App. 2003) (agreeing with trial court); Dorval Tankship Pty, Ltd. v. Department of Fin., 8 FSM R. 111, 115 (generally true that parties may not assert the rights of third parties).
Here, Setik tries to raise the shareholders’ rights or claims. Accordingly, this cause of action does not constitute a good defense to set aside the bank’s judgments.
g. Gross Negligence
Setik pled a claim for gross negligence, vicarious liability, and respondeat superior against the bank’s board for hiring, training, and supervising its president and counsel based on those officers’ alleged harmful acts towards borrowers. This claim appears to be based on the premise that the bank’s mortgage and its foreclosure are wrongful interference with the Estate of Raymond Setik’s property rights. As explained above, that premise cannot stand scrutiny.
Accordingly, this cause of action fails to state a claim on which the court could grant relief and therefore does not constitute a good defense to set aside the bank’s judgments.
h. Tortious Interference with Business Opportunities
Setik pled a claim for tortious interference with business relations and lost business opportunities and profits. This claim is based on Setik’s position that the property belongs to Raymond Setik’s estate and is under a probate court’s supervision so that the bank’s foreclosure wrongfully interferes with their C-Star business. Since this premise cannot stand, this cause of action fails to state a claim on which the court could grant relief. Accordingly, it does not constitute a good defense to set aside the bank’s judgments.
5. Lack of an Independent Action Element Precludes Relief
Other elements of an independent action are lacking. We briefly mention them because the absence of any one essential element precludes relief, and Setik has failed to show the essential element of a good defense, thus precluding relief.
Setik has also not explained what fraud, accident, or mistake prevented the Setiks from timely raising the defenses they now assert before the judgments were entered. The element requiring the absence of fault or negligence on the part of the party seeking to set aside a judgment is more stringent in an independent action in equity than in a Rule 60(b) motion for relief. See Carteret Sav. & Loan Ass’n v. Jackson[1987] USCA1 62; , 812 F.2d 36, 39-40 (1st Cir. 1987) (equitable action presupposes absence of fault or negligence). If Setik’s "causes of action" were not good defenses but rather separate claims, they would have been compulsory counterclaims. The Setiks would have had to have raised these counterclaims in an answer. FSM Civ. R. 13(a). They cannot sit idly by while the bank’s promissory note claim goes to a default judgment and then later raise the compulsory counterclaims as defenses warranting relief in an independent action. Jackson, 812 F.2d at 38-39.
Accordingly, we affirm the trial court’s dismissal of Civil Action No. 2015-031. Setik is unable to prevail on one or more essential element of an independent action to set aside a judgment. The trial court therefore did not abuse its discretion when it dismissed Civil Action No. 2015-031.
C. Motion for Restraining Order
Setik contends that the trial court wrongfully denied the motion for a temporary restraining order not only because Justice Materne was improperly appointed as a temporary justice (an argument we reject, see supra pt. III.A.2) but also because she was disqualified from making any rulings since the winning bidder in the bank’s C-Star auction was her uncle, and because the plaintiffs were entitled to an evidentiary hearing at which they would have shown that they were threatened with imminent irreparable harm.
1. Justice Materne’s Disqualification
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) kny theice to havinan interest that could be substantially affected by the outcome of thof the proe proceeding." 4 F.S.M.C. 124(2). The Jury Aco requires Supreme Court justices to "adhere to the standards of 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.
Thus, when Justice Materne’s uncle, Feliciano Perman, became the winning bidder, a potential conflict emerged. (If virtually anyone else had been the winning bidder, no conflict would have arisen.) Once the bank received Perman’s full payment, it prepared a motion to transfer title to him. When that motion was filed (in Civil Action Nos. 2007-008 and 2010-006) on November 18, 2015, or some time shortly thereafter, Justice Materne would, or should, have first known had actual knowledge that a person in close relationship to her, her uncle, could be substantially affected by further substantive proceedings involving C-Star, and that there was now a conflict. Only then did her disqualification become an issue. It was also when Justice Materne’s impartiality might first reasonably be questioned. 4 F.S.M.C. 124(1). We note that these disqualifying circumstances do not have retroactive effect since they could not affect Justice Materne’s orders before November 18, 2015, because until then she would not have known that her uncle had an interest that the litigation could substantially affect. But she did not disqualify herself before issuing the order denying the temporary restraining order request.
Although 4 F.S.M.C. 124 and the ABA Code of Judicial Conduct, as made applicable to the FSM Supreme Court justices by 4 F.S.M.C. 122, define the circumstances that require an FSM Supreme Court justice’s disqualification, those provisions neither prescribe nor prohibit any particular remedy for a violation of that duty. Congress has thus delegated to the judiciary the task of fashioning the appropriate remedies to best serve the legislation’s purpose. 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 . .#160;. There need not not be a draconian remedy for every violation . . . ." Lilg verHealth ServsServs. Acquisition Corp.[1988] USSC 125; , 486 U.S. 847, 862[1988] USSC 125; , 108 S. Ct. 2194, 2203-04,L. Ed. 2d 855, 873 (1988).<88).
"A disqualified judge may perform purely ministerial tasks. . .n act is ministerial wial when the law requires that a duty be performed and leaves nothing to the exercise of discretion or judgment. Discretionary acts are tin which one has the right to determine between two or more 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. But a disqualified judge "is not thereby prevented from making orders that are purely formal in character," 46 AM. JUR. 2D Judges § 230 (rev. ed. 1994), and lsy also issue housekeeping orders, Moody v. Simmons, [1988] USCA3 1210; 858 F.2d 137, 143 (3d Cir. 1988).
2. Nature of the ber 20, 2015 Order
For a trial court to consider a motion for a temporary rary restraining order, there must be a verified complaint pending before the court. FSM Civ. R. 65(b). In this case, there was none. The trial court had already, on November 17, 2015, dismissed the complaint, and that complaint had not been verified. If, instead of a temporary restraining order, a preliminary injunction was actually sought, the complaint did not need to be verified, but the court still needed a pending complaint. No complaint was pending. It had already been dismissed. No judge could have granted a temporary restraining order motion under that circumstance. The denial was thus a purely formal housekeeping matter to tie up a loose end. No judge would have had the discretion to act otherwise since there was no pending case left. The trial court thus correctly denied it as moot.
We also note that what Setik sought was an injunction against the order in aid of judgment (and the judge making those orders) in Civil Action Nos. 2007-008 and 2010-006. An FSM Supreme Court trial division justice in one case does not have jurisdiction to set aside or overrule orders entered in a different trial division case. Ehsa v. FSM Dev. Bank, 19 FSM R. 253, 257 (Pon. 2014). Nor does a judge have jurisdiction to grant injunctive relief against a trial division judge’s acts in another case. Id.
Accordingly, we hereby affirm the purely formal trial court denial of the temporary retraining order motion as moot.
D. Rule 11 Sanctions
The trial court imposed Rule 11 sanctions on Setik’s attorney because she could not have conducted a "reasonable inquiry" into whether the pleading was "warranted by existing law" since its filing was barred by "controlling law." Mendiola, 20 FSM R. at 323-24, 328. A later order set those sanctions at $2,687.50. Both those orders were appealed.[4] These Rule 11 sanctions should not be imposed in this case for two principal reasons.
First, Justice Materne should have recused herself rather than rule on the Rule 11 motion. It was neither a housekeeping nor a ministerial matter. And, although the Rule 11 motion could not substantially affect her uncle’s interest, her impartiality might reasonably be questioned. When a judge has sat in violation of an express statutory standard for disqualification, the usual remedy is that "the disqualified judge’s rulings are, on appeal, to be vacated." United States v. Van Griffin, [1989] USCA9 343; 874 F.2d 634, 637 (9th Cir. 1989); Davis v. Xerox, [1987] USCA9 305; 811 F.2d 1293, 1296 (9th Cir. 1981) (citing William Cramp & Sons Ship & Engine Bldg. Co. v. International Curtis-Marine Turbine Co., [1913] USSC 188; 228 U.S. 645, 33 S. Ct. 722, 57 L. Ed. 1003 (1913)).
If we only vacate the sanctions orders, the Rule 11 motion would be restored as a pending matter to be ruled on by a new trial division judge. We think, for the following reasons, that the better path is an outright reversal.
The sanction order was based on the trial court’s supposition that counsel’s filing of Civil Action No. 2015-031 violated "controlling law." Mendiola, 20 FSM R. at 324, 328. In order to be "controlling law," the precedent must be a binding precedent. See, e.g., Rhone Poulenc, Inc. v. United States, [1989] USCAFED 394; 880 F.2d 401, 404-05 (Fed. Cir. 1989); United States ex rel. Carter v. Halliburton Co., 315 F.R.D. 56, 59 (E.D. Va. 2016). A binding precedent is a "precedent that a court must follow. · For example, a lower court is bound by an applicable holding of a higher court in the same jurisdiction." BLACK’S LAW DICTIONARY 1296 (9th ed. 2009).
The trial court cited FSM Dev. Bank v. Carl, 20 FSM R. 70 (Pon. 2015) and Arthur v. Pohnpei, 16 FSM R. 581 (Pon. 2009), as precedent. While those cases are precedents, they are not binding precedents since they are only trial court decisions. They are thus not "controlling law." If they had been FSM Supreme Court appellate division decisions, they would have been controlling law.[5] Although the same counsel represented the defendant in Carl, she did not appeal that adverse ruling. Since no binding precedent was created, counsel was free to pursue the same tactic in another case, and if the ruling in that case was again adverse, to (if her client were willing) appeal that ruling for a definite and binding precedent, one way or the other. That is what happened here.
Accordingly, we reverse the imposition of Rule 11 sanctions. And, since we reverse the trial court’s Rule 11 sanctions, its calculation of the amount of those sanctions is now moot.
IV. CONCLUSION
We affirm the trial court’s dismissal of Civil Action No. 2015-031 and its denial of the motion for a temporary restraining order. We reverse the trial court’s imposition of Rule 11 sanctions. The parties are to bear their own costs.
* * * *
[1] It has not been established just who these unnamed plaintiffs are since they are not named in the complaint. See discussion below in part III.A.1.
[2] "No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest . . . FSM C. 17R. 17(a).
[3] We may affirm a trial court decision on a different theory or on different grounds when the record contains adequate and independent
support for that basis. Tilfas v. Kosrae, 21 FSM R. 81, 92 (App. 2016); Occidental Life Ins. Co. v. Johnny, 20 FSM R. 420, 430 (App.
2016); Sam v. FSM Dev. Bank, 20 FSM R. 409, 418 n.2 (App. 2016); Bualuay v. Rano, 11 FSM R. 139, 150 n.3 (App. 2002); Nahnken of
Nett v. United States, 7 FSM R. 581, 589 (App. 1996).
[4] Normally, we would dismiss Appeal Case No. P7-2016 for lack of jurisdiction since it is not from a final order because, although
sanctions liability had been determined, the amount of those sanctions had not. FSM Dev. Bank v. Adams, 12 FSM R. 456, 461 (App.
2004); Santos v. Bank of Hawaii, 9 FSM R. 285, 287 (App. 1999). But as Appeal Case No. P9-2016 was from a final order (since it
fixed the sanction amount) into which the earlier liability order merged, it did not matter whether Appeal Case No. P7-2016 was dismissed
or consolidated with Appeal Case No. P9-2016.
We also note that when Rule 11 sanctions are imposed on a party’s attorney, the sanctioned attorney should make the appeal, proceeding under his or her own name as the real party in interest. Abrams v. FSM Dev. Bank, 20 FSM R. 309, 310 (App. 2016); In re Sanction of George, 19 FSM R. 131, 133 (App. 2013); In re Sanction of George, 17 FSM R. 613, 616 (App. 2011); FSM Dev. Bank v. Yinug, 12 FSM R. 450, 453 (App. 2004); FSM Dev. Bank v. Adams, 12 FSM R. 456, 463 (App. 2004); In re Sanction of Woodruff, 9 FSM R. 374, 375 (App. 2000); In re Sanction of Berman, 7 FSM R. 654, 656 (App. 1996).
[5] Of course, our decision today on when a party may pursue an independent action after having previously been denied relief from judgment sought through a Rule 60(b) motion is binding precedent and controlling law from this day forward.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fm/cases/FMSC/2018/16.html