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Supreme Court of the Federated States of Micronesia |
FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-003
FSM DEVELOPMENT BANK,
Plaintiff,
vs.
YOSILYN CARL, as Administrator of the
Estate of Linda Carl, and the ESTATE OF
YOSHIRO CARL,
Defendants.
__________________________________________
ORDER DENYING DISMISSAL AND GRANTING SUMMARY JUDGMENT IN PART
Larry Wentworth
Associate Justice
Hearing: September 10, 2019
Decided: October 21, 2019
APPEARANCES:
For the Plaintiff: Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941
For the Defendant: Yoslyn G. Sigrah, Esq.
(Yosilyn Carl) P.O. Box 3018
Kolonia, Pohnpei FM 96941
For the Defendant: Vincent Kallop, Esq.
(Estate of Y. Carl) Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941
* * * *
HEADNOTES
Civil Procedure - Dismissal - Lack of Jurisdiction; Jurisdiction - Exclusive FSM Supreme Court
The FSM Supreme Court must deny a motion to dismiss for lack of subject-matter jurisdiction when the FSM Development Bank is a party
because the court has jurisdiction when the FSM Development Bank is a party. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Jurisdiction - Subject-Matter Jurisdiction
A statute that acts as a bar to an action does not deprive the court of subject-matter jurisdiction to hear the case in the first
instance because the court cannot rule on the statute’s proper application - the statute’s effect on the case - if it
does not have subject-matter jurisdiction to consider the case. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Civil Procedure - Dismissal - Lack of Jurisdiction; Jurisdiction - Subject-Matter Jurisdiction
A statutory bar does not mean that the court would lack subject-matter jurisdiction over the case, but instead it would be an affirmative
defense that would bar the plaintiff’s claim and require that a judgment be entered for the defendant. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Civil Procedure - Summary Judgment
For a movant to prevail on its summary judgment motion, it must overcome all of the defendants’ affirmative defenses by either
establishing their legal insufficiency or disproving them. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation - Which Limitation Applies
FSM statutory law recognizes the existence of an action on a judgment because it provides a time limit - 20 years - within which one
must be brought. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation - Which Limitation Applies
An action may be maintained up to twenty years after the date of entry of the judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371 (Pon. 2019).
Civil Procedure - Res Judicata; Judgments - Action on a Judgment
When a valid and final personal judgment is rendered in the plaintiff’s favor, the plaintiff cannot thereafter maintain an action
on the original claim or any part thereof, although the plaintiff may be able to maintain an action upon the judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 371-72 (Pon. 2019).
Common Law
While FSM courts are not bound to adopt common-law principles, they are authorized by statute to use the Restatements of the Law to
determine and apply the common law in the absence of written law while keeping in mind the principle’s suitability for the
FSM. Courts are statutorily authorized, under both FSM national and Pohnpei state law, to consider the common law as expressed in
the ALI Restatements of Law. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 n.1 (Pon. 2019).
Attachment and Execution; Judgments - Action on a Judgment
An action on a judgment is a new and independent action, and not merely a means of enforcing a judgment, as is a writ of execution.
FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Judgments - Action on a Judgment
To be available as a cause of action, the judgment must be a definite and personal judgment for the payment of money, final in its
character and not merely interlocutory, remaining unsatisfied, and capable of immediate enforcement. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Contracts - Implied Contracts; Judgments - Action on a Judgment
An action based on a judgment is an action based on contract. The judgment becomes a debt which the judgment debtor is obligated
to pay and the law implies a contract on his part to pay it. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Judgments - Action on a Judgment
A suit on a judgment is separate and independent from the underlying cause of action that led to the judgment, and is deemed distinct
from the original suit in which the prior judgment was rendered. It must be commenced and prosecuted in the same way as any other
civil action brought to recover judgment on a debt. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Judgments - Action on a Judgment
In an action on a judgment, the original cause of action is merged in the judgment, and, unless void, the judgment is conclusive.
FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Judgments - Action on a Judgment
An action on a judgment is not an action on the original claim, which has merged into the original judgment. It is a new and independent
action. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Judgments - Action on a Judgment
An action on a judgment must be prosecuted by the owner of it, and it must be brought against the defendant of record in the judgment
or the defendant’s successor in interest, and not an entity or person not named in the judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Civil Procedure - Parties
The administrator of a decedent’s estate, is undisputedly the decedent’s successor in interest. FSM Dev. Bank v. Carl, 22 FSM R. 365, 372 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure
Once the summary judgment movant presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving
party to produce evidence showing that a genuine issue of material fact remains for resolution. A plaintiff, when moving for summary
judgment, must not only show that there is no issue of material fact but must also show that the affirmative defenses are insufficient
as a matter of law. FSM Dev. Bank v. Carl, 22 FSM R. 365, 373 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure; Judgments - Action on a Judgment
An action on a judgment is especially apt for resolution by means of a motion for summary judgment. Usually, the plaintiff establishes
his prima facie case by producing certified copies of the judgment on which the action is based and the identity of the defendant
as obligee. FSM Dev. Bank v. Carl, 22 FSM R. 365, 373 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure; Judgments - Action on a Judgment
When, in an action on a judgment, the plaintiff has produced a copy of the judgment on which the action is based, but it is not certified,
that deficiency may be disregarded where the original judgment on which the action is based was entered in the same court and venue
in which the action on the judgment is filed, and thus the copy’s accuracy can easily be verified. FSM Dev. Bank v. Carl, 22 FSM R. 365, 373 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure; Judgments - Action on a Judgment
When one co-defendant’s "affirmative defense" may more accurately be a cross-claim against its co-defendant, to which the co-defendant
has not responded (or even been specifically asked to respond), it may be disregarded for the purpose of the plaintiff’s summary
judgment motion against the two co-defendants. FSM Dev. Bank v. Carl, 22 FSM R. 365, 373 (Pon. 2019).
Judgments - Action on a Judgment
The defenses against an action on a judgment are limited. In an action on a judgment, the original cause of action is merged in the
judgment, and, unless void, the judgment is conclusive, and no defense is available which was, or might have been, urged in defense
of the original action. FSM Dev. Bank v. Carl, 22 FSM R. 365, 373 (Pon. 2019).
Judgments - Action on a Judgment
In an action on the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first
action. It is immaterial whether the defendant interposed the defense or failed to do so or even defaulted in the original action.
Nor does the fact that the judgment was erroneous preclude the plaintiff from maintaining an action upon it. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Judgments - Action on a Judgment
In an action on the judgment, the defendant may interpose matters which have arisen since the rendition of the judgment and constitute
defenses to its enforcement such as payment, release, accord and satisfaction, or the statute of limitations. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Equity - Estoppel; Equity - Laches; Judgments - Action on a Judgment
Generally, the equitable defense of laches is only available to a defendant when the plaintiff has sought some form of equitable relief
and is not available as a defense against actions at law. Because an action on a judgment is an action at law, the equitable defense
of laches is not available as a matter of law. The same is true for an estoppel defense. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Bankruptcy - Discharge; Judgments - Action on a Judgment
The defenses of fraud, misrepresentation, and illegality are unavailable as defenses to an action on a judgment unless they are part
of the recognized defenses - payment, release, accord and satisfaction, or the statute of limitations (the court also recognizes
that a discharge in bankruptcy of a judgment debt would likely constitute a good defense as a release) - but fraud would be an available
defense if there was fraud on the court in obtaining the judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure
A party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or
abandoned that defense. The non-movant facing a summary judgment motion must do more than merely mention the affirmative defense
in its pleading or in its opposition. This is because there is no factual issue left for trial unless there is sufficient evidence
favoring the non-moving party for the court to find for the non-movant. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Judgments
A judgment of any court is presumed to be paid and satisfied at the expiration of twenty years after it is rendered. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Judgments - Action on a Judgment
An action on a judgment’s main purpose is to obtain a new judgment, which will facilitate the ultimate goal of securing satisfaction
of the original cause of action. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374 (Pon. 2019).
Judgments - Action on a Judgment; Judgments - Action on a Judgment - Foreign Judgment
A party has a right to maintain an action on a judgment when some advantage will be secured thereby. Often the advantage to be secured
is to domesticate a judgment from another jurisdiction so that the other jurisdiction’s judgment can be enforced domestically
against the defendant or the defendant’s property. FSM Dev. Bank v. Carl, 22 FSM R. 365, 374-75 (Pon. 2019).
Attachment and Execution; Judgments - Action on a Judgment; Statutes of Limitation
A judgment for the plaintiff awarding him a sum of money creates a debt in that amount in his favor. The plaintiff may maintain proceedings
by way of execution for enforcement of the judgment, the plaintiff may also be able to maintain an action upon the judgment. Ordinarily
no useful purpose is served by bringing an action in the same state upon the judgment instead of executing upon it, but if the statute
of limitations period has almost run, the plaintiff can bring an action upon the judgment and obtain a new judgment upon which the
limitations period will run again. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation
While ordinarily no advantage is gained by bringing an action in the same court upon a judgment, if the statute of limitation period
has almost run upon the judgment, the judgment creditor can start the limitation period anew by bringing an action upon the judgment
and obtaining a new judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation - Tolling
The twenty-year statute of limitations would be an effective affirmative defense against an action on a February 11, 1999 judgment
filed after February 11, 2019, but when the action on a judgment was filed January 8, 2019, it was begun within the statutory period,
and is thus timely and may proceed to judgment. This is because once an action on a judgment has begun within the statutory period,
the creditor’s right to recover remains alive, even though the limitation period may subsequently expire. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation - Tolling
The institution of an action on a judgment within the statutory period tolls the statute although it is not followed by rendition
of judgment, or even service of an answer, within such time. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375 (Pon. 2019).
Judgments - Action on a Judgment; Statutes of Limitation - Tolling
The institution of an action on a judgment within the twenty-year statutory period set by 6 F.S.M.C. 802(1)(a) tolls that limitation
statute even though the court has not yet rendered a judgment and even despite that a defendant did not file and serve her answer
within the statutory time period. Because the timely filing of the action tolled the statutory time period, the statute, 6 F.S.M.C.
801, that creates a presumption of satisfaction after the twenty years has passed, does not come into play. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375 (Pon. 2019).
Judgments - Action on a Judgment
The defenses of payment, release, and accord and satisfaction are defenses that are available against an action on a judgment. FSM Dev. Bank v. Carl, 22 FSM R. 365, 375-76 (Pon. 2019).
Civil Procedure - Summary Judgment - Procedure; Contracts - Accord and Satisfaction; Judgments - Action on a Judgment
Although release and accord and satisfaction are both defenses that are available against an action on a judgment, when they were
mentioned as affirmative defenses in a defendant’s answer, but were neither raised nor mentioned in her opposition to the plaintiff’s
summary judgment motion, these defenses are deemed waived or abandoned. FSM Dev. Bank v. Carl, 22 FSM R. 365, 376 (Pon. 2019).
Judgments - Action on a Judgment
In an action on a judgment there is a rebuttable presumption that a judgment remains in full force and unsatisfied. The plaintiff
does not bear the burden of proving that the judgment has not been satisfied. FSM Dev. Bank v. Carl, 22 FSM R. 365, 376 (Pon. 2019).
Civil Procedure - Affidavits; Evidence
When a movant has provided an affidavit verifying an attached payment history and no contrary evidence is provided, the court normally
would accept this evidence as an accurate account of what was owed if the affidavit and the ledger sheet were regular on their face,
but the court will not if it is apparent that the numbers do not add up. FSM Dev. Bank v. Carl, 22 FSM R. 365, 376 (Pon. 2019).
Judgments - Interest on
The interest on judgments is simple interest; it is not to be compounded. FSM Dev. Bank v. Carl, 22 FSM R. 365, 376 (Pon. 2019).
* * * *
COURT’S OPINION
LARRY WENTWORTH, Associate Justice:
On September 10, 2019, the court heard: 1) Plaintiff’s Motion for Summary Judgment Against Defendants Yosilyn Carl and Estate of Yoshiro Carl, with supporting affidavit, filed March 12, 2019; 2) Plaintiff’s Motion for Pre-Judgment Entry of a Writ of Attachment and/or Writ of Garnishment, filed April 25, 2019; 3) Response to Motion for Summary Judgment, filed April 29, 2019, by the Estate of Yoshiro Carl; 4) Opposition to Motion for Summary Judgment; Motion to Dismiss Complaint for Lack of Proper Jurisdiction, filed May 6, 2019, by Yosilyn Carl; and 5) Plaintiff’s Reply to Yosilyn Carl’s Opposition; Plaintiff’s Opposition to Defendant Yosilyn Carl’s Motion to Dismiss Complaint, filed May 13, 2019.
The court denied, from the bench, the plaintiff’s motion for a prejudgment writ of attachment or garnishment because the plaintiff had previously obtained a similar writ in FSM Development Bank v. Carl, Civ. No. 1996-060. The court now denies defendant Yosilyn Carl’s motion to dismiss and grants the bank’s summary judgment motion in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Yoshiro Carl and Linda Carl borrowed money from the FSM Development Bank. The loan was secured by a mortgage on a leasehold property in Kolonia Town. The loan eventually went into default. Yoshiro Carl died December 29, 1995. The bank filed suit in late 1996 against Linda Carl and the Estate of Yoshiro Carl. That case was docketed as Civil Action No. 1996-060. Eventually, the parties stipulated to a judgment in the bank’s favor for $45,137.79, bearing 7% interest per annum (instead of the usual statutory 9% interest). Chief Justice Andon L. Amaraich ordered that stipulated judgment entered on February 11, 1999.
Between February 2002 and June 2014, numerous payments were made on the judgment, but the judgment was never fully satisfied. One further $500 payment was made April 3, 2017. Linda Carl died some time after that and Yosilyn Carl was duly appointed the administrator of her estate.
The bank filed this current suit on January 8, 2019, as an action on a judgment, specifically, an action on the unsatisfied part of the February 11, 1999 judgment in Civil Action No. 1996-060. The defendant Estate of Yoshiro Carl filed its answer on February 11, 2019, and asserted as an affirmative defense that its co-defendant collected all the rental amounts from the businesses on the mortgaged property and was therefore the party that should pay any judgment.
Yosilyn Carl filed her answer on February 28, 2019, asserting as affirmative defenses the statute of limitations, misrepresentation, fraud, illegality, laches, estoppel, payment, release, accord and satisfaction.
The parties then filed the papers listed above in the first paragraph. The court now considers the pending motions.
II. MOTION TO DISMISS
Defendant Yosilyn Carl, as the Administrator of the Estate of Linda Carl, moves to dismiss this case with prejudice because, in her view, 6 F.S.M.C. 801 makes the judgment uncollectible since it is now over twenty years after the judgment was entered; because the original complaint was filed twenty-four years ago and the bank should not be able to file the same complaint against the same defendants off the same promissory note twenty-four years later; and because, for those reasons, the court lacks subject matter jurisdiction.
The court must deny the motion. The court has subject-matter jurisdiction because the FSM Development Bank is a party. Ehsa v. FSM Dev. Bank, 20 FSM R. 498, 518 (App. 2016); FSM Dev. Bank v. Estate of Edmond, 19 FSM R. 425, 432-33, 435-36 (App. 2014); Helgenberger v. FSM Dev. Bank, 18 FSM R. 498, 500 (App. 2013). A statute that acts as a bar to an action does not deprive the court of subject-matter jurisdiction to hear the case in the first instance because the court could not rule on the statute’s proper application - the statute’s effect on the case - if it did not have subject-matter jurisdiction to consider the case. See Alik v. Heirs of Alik, 21 FSM R. 606, 621 (App. July 3, 2018) (raising a statute of limitation as a bar to a remedy does not deprive a court of jurisdiction to hear the case, at least to decide how the statute applies).
Yosilyn Carl contends that 6 F.S.M.C. 801 bars this suit because it is now over twenty years since February 11, 1999, the date judgment was entered in Civil Action No. 1996-060. This contention, if true, does not mean that the court would lack subject-matter jurisdiction over the case, but instead it would be an affirmative defense that would bar the plaintiff’s claim and require that a judgment be entered in the defendants’ favor. Because 6 F.S.M.C. 801 is in the nature of an affirmative defense, it is best that the court consider its application when analyzing the bank’s summary judgment motion since, for the bank to prevail on its summary judgment motion, the bank must overcome all of the defendants’ affirmative defenses by either establishing their legal insufficiency or disproving them.
III. SUMMARY JUDGMENT MOTION
A. Nature of an Action on a Judgment
This case was brought as an action on a judgment. FSM statutory law recognizes the existence of such actions because it provides a time limit within which one must be brought. Title 6, § 802(1) provides that "[toll following actions shall be commenced only within twenty years after the cause of action accrues: (a) actions upon a judgment . . . ." Also,court̵p;s aatellate division recognized such actions whns when held that "[a]n action on a judgment may be maintained up to twentrs afhe da entry of the judgment." Senda v. Creditors of Mid-Pacific Constr. str. Co., 7u>, 7 FSM R. 664, 672 (App. 1996).
"When a valid and final personal judgment is rendered in favor of the plaintiff: (1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment." RESTATEMENT (SECOND) OF JUDGMENTS § 18 (1982).[1] "[A] civil action on a judgment . . . is a new and independenioaction, and not merely a means of enforcing a judgment, as is a writ of execution." oerber v. Middlesex Collegellege, 383 A.2d 1054, 1055 (Vt. 1978).
"To be available as a cause of action the judgment must be a definite and personal judgment for the payment of money, final in its
character and not merely interlocutory, remaining unsatisfied, and capable of immediate enforcement." 50 C.J.S. Judgment § 957, at 545 (; see also
"An action based on a judgment is an action based on contract. The judgment becomes a debt which the judgment debtor is obligated to pay and the law implies a contract on his part to pay it." United States Capital Corp. v. Nickleberry, 174 Cal. Rptr. 814, 815 (Cal. Ct. App. 1981).
A suit on a judgment is separate and independent from the underlying cause of action that led to the judgment, and is deemed distinct from the original suit in which the prior judgment was rendered. It must be commenced and prosecuted in the same way as any other civil action brought to recover judgment on a debt.
47 AM. JUR. 2D Judgments § 986 (rev. ed. 1995) (fte omte omitted). Thus, Yosilyn Carl’s contention that the bank should not be able to file the same complaint against the same defendants off the same promissory note twenty-four years is misplaced. "In an acti action on a judgment, the original cause of action is merged in the judgment, and, unless void, the judgment is conclusive." 50 C.J.S. Judgment § 962.a550 (1997). An actionction on a judgment is not an action on the original claim, which has merged into the original judgment. It is a new and independent action.
"An action on a ent must be prosecuted by t by the owner of it." 50 C.J.S. Judgment § 963, at 552 (. It is undisundisputed that the plaintiff prosecuting this case, the FSM Development Bank, owns the Civil Action
No. 1996-060 judgment. And an action on a jut must "be brought against the defendant of record in the jthe judgment or his successor
in interest, and not an entity or person not named in the judgment." Id. § 963, at 553 (foe omitted). ed). The Civil Action No. 1996-060 judgment was rendered against defendants Linda Carl and the
Estate of Yoshiro Carl. The Estate of Yoshiro Carl is a defendant in this action anilyn Carl, as administratorrator of Linda Carl’s
estate, is undisputedly Linda Carl’s successor in interest.
B. Prima Facie Case for Summary Judgment
Once the party moving for summary judgment presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing that a genuine issue of material fact remains for resolution, Miguel v. FSM Social Sec. Admin., 20 FSM R. 475, 478 (Pon. 2016), and a plaintiff, when moving for summary judgment, must not only show that there is no issue of material fact but must also show that the affirmative defenses are insufficient as a matter of law. Eot Municipality v. Elimo, 20 FSM R. 482, 489 (Chk. 2016).
The bank moves for summary judgment on this action on a judgment. "[A]n action on a judgment is especially apt for resolution by means of a motion for summary judgment." Wentworth Home for the Aged v. Walters, 1992 Mass. App. Div. 171, 172 (Mass. Super. Ct. 1992). "Usually, plaintiff establishes his prima facie case by producing certified copies of the judgment on which the action is based and the identity of the defendant as obligee." Id. at 173.
The bank has produced a copy of the judgment on which the action is based, but it is not certified. That deficiency may be disregarded where, as here, the original judgment on which the action is based was entered in the same court and venue [FSM Supreme Court trial division, Pohnpei venue] in which the action on the judgment is filed, and thus the copy’s accuracy can easily be verified. See Onanu Municipality v. Elimo, 20 FSM R. 535, 541 (Chk. 2016) (court may take judicial notice of its own files in related cases); Rudolph v. Louis Family, Inc., 13 FSM R. 118, 125 n.2 (Chk. 2005) (same). Also, the defendants do not challenge its authenticity or its accuracy.
C. Defendants’ Affirmative Defenses
The defendant Estate of Yoshiro Carl asserted an affirmative defense that its co-defendant collected all the rental amounts from the businesses on the mortgaged property and is therefore the party that should pay any judgment. This is not really an affirmative defense that would bar the bank from obtaining a judgment against the Estate of Yoshiro Carl. It may more accurately be a cross-claim against its co-defendant,[2] to which the co-defendant has not responded (or even been specifically asked to respond). For the purpose of the bank’s summary judgment motion against the two co-defendants, it may be disregarded.
Yosilyn Carl asserts affirmative defenses of the statute of limitations, misrepresentation, fraud, illegality, laches, estoppel, payment, release, accord and satisfaction, and the 6 F.S.M.C. 801 presumption of payment and satisfaction.
1. Defenses Available Against an Action on a Judgment
The defenses against an action on a judgment are limited. "In an action on a judgment, the original cause of action is merged in the judgment, and, unless void, the judgment is conclusive. . . o defis availabailable whic which was, or might have been, urged in defense of the original action." 50 C.J.S. Judgment § 962.a, at 550 (1997). Thus, "[i]n an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action." RESTATEMENT (SECOND) OF JUDGMENTS §¢) (1982); see also Zent v. Zent, 281 N.W.2d 41, 44 (N.D. 1979).
When the plaintiff brings an action upon the judgment, the defendant cannot avail himself of defenses which he might have interposed in the original action. It is immaterial whether he interposed the defense or failed to do so or even defaulted in the original action. Nor does the fact that the judgment was erroneous preclude the plaintiff from maintaining an action upon it.
In an action on the judgment the defendant may interpose matters which have arisen since the rendition of the judgment and constitute defenses to its enforcement such as payment, release, accord and satisfaction, or the statute of limitations. . .&#
RESTATEMENTEMENT (SECOND) OF JUDGMENTS § 18 cm(1982) (citations omit omitted); see also Corzo Trucking Corp. v. West, 61 So1285, 1288 (Fla. Dist. Ct. App. 2011).
Generallerally, the equitable defense of laches is only available to a defendant when the plaintiff has sought some form of equitable relief and is not available as a defense against actions at law. Iriarte v. Individual Assurance Co., 18 FSM R. 340, 362 (App. 2012). "[B]ecause an action on a judgment is an action at law, the equitable defense of laches is not available as a matter of law." 50 C.J.S. Judgment § 961.a, at 548 (1997). The same is true for an estoppel defense. Thus, these two equitable affirmative defenses are legally insufficient and are unavailableosilyn Carl.
The defenses of fraud, misrepresentation, and illegality are also also unavailable unless they are part of the recognized defenses to an action on a judgment - payment, release, accord and satisfaction, or the statute of limitations - in which case, on those defenses would be used (the court also recognizes that a discharge in bankruptcy of a judgment debt would likely constitute a good defense as a release). Fraud would be an available defense if there was fraud on the court in obtaining the judgment, 50 C.J.S. Judgment § 962.a, at(1997), but there here is no evidence or allegation of that in this case.
Furthermore, while Yosilyn Carl pled these affirmative defenses, she did not raise, or even mention them i opposition to the bankRk’s summary judgment motion. A party that has pled an affirmative defense but does not raise that defense in response to a summary judgment motion has waived or abandoned that defense. Vela v. City of Houston, [2001] USCA5 488; 276 F.3d 659, 678-79 (5th Cir. 2001) (statute of limitations defense that was pled, but not subsequently raised in opposition to summary judgment motion, was deemed waived). The non-movant facing a summary judgment motion must do more than merely mention the affirmative defense in its pleading or in its opposition. This is because there is no factual issue left for trial unless there is sufficient evidence favoring the non-moving party for the court to find for the non-movant.
2. 6 F.S.M.C. 801 Presumption & Statute of Limitations
Yosilyn Carl contends that the 6 F.S.M.C. 801 statutory presumption of satisfaction and payment bars this action. That statute reads: "A judgment of any court shall be presumed to be paid and satisfied at the expiration of twenty years after it is rendered." 6 F.S.M.C. 801. The bank, relying on Kama v. Chuuk, 18 FSM R. 326 (Chk. S. Ct. Tr. 2012), aff’d, 20 FSM R. 522 (Chk. S. Ct. App. 2016), contends that Section 801’s presumption is rebuttable and that the bank has rebutted it.
"Generally, the main purpose of an action on a judgment is to obtain a new judgment, which will facilitate the ultimate goal of securing satisfaction of the original cause of action." 47 AM. JUR. 2D Judgments § 945, at 408 (rev. ed. 1 "[. "[A] party has a right to maintain an action on a judgment when some advantage will be secured thereby." 50 C.J.S. Judgment § 956, at 544 (1 Often the athe advantage secured is to domesticate cate a judgment from another jurisdiction so that the other jurisdiction’s judgment can be enforced tically against the defendant or the defendant’s prop property in this jurisdiction.[3] That is not the case here. This action on a judgment is filed in the same court and venue in which the original action was filed and judgment entered.
A judgment for the plaintiff awarding him a sum of money creates a debt in that amount in his favor. He may maintain proceedings by way of execution for enforcement of the judgment, he may also be able to maintain an action upon the judgment. Ordinarily no useful purpose is served by bringing an action in the same state upon the judgment instead of executing upon it, but if . . . the period ofstatute of l of limitations has almost run, the plaintiff can . .ring an action upon thon the judgment and obtain a new judgment upon which the limitations period will run again.
REMENT ND) OF ) OF JUDGMJUDGMENTS § 18 cmt. c (1982). Thus,
While ordinarilnarily no advantage is gained by bringing an action in the same [court] upon a judgment, if the statute of limitation period has almost run upon the judgment, the judgmenditor can start the limitatmitation period anew by bringing an action upon the judgment and obtaining a new judgment.
Koerber, 383 A.2d at 1057 (citation omitted). That is exactly what the bank seeks to do with this action on a judgment - obtain a new judgment on which the limitations period will run again.
The twenty-year statute of limitations would have been an effective affirmative defense against an action on the Civil Action No.
1996-060 judgment filed after February 11, 2019. This action on that judgment was filed January 8, 2019. It was thus begun within
the statutory period, and is thus timely and may proceed to judgment. This is because "[o]nce an action [on a judgment] has begun
within the statutory period, the creditor’s right to recover remains alive, even though the [limitation] period may subsequently
expire." Alonso Inv. Corp. v. Doff, 551 P.2d 1243, 1246 (Cal. 1976); Nickleberry, 174 Cal. Rptr. at 815-16. And "the institution of an action on a judgment within the statutory period tolls the statute although
it is not followed by rendition of judgment, or even service of an answer, within such time . . . ." 50 C.J.SJ entgmi> &#i> § 961.d, at 550 (19/p>
Thus, the institution of this action on a judgment within the twenty-year statutory period set by 6 F.S.M.C. 802(1)(a) tolls thaitatiatute though the the courtcourt has not yet rendered a judgment and and even despite that defendant Yosilyn Carl did not file and serve her answer within the statutory time period either. Because the timely filing of this action has tolled the statutory time period, the statute, 6 F.S.M.C. 801, that creates a presumption of satisfaction after the twenty years has passed, does not come into play. The court therefore does not need to determine whether 6 F.S.M.C. 801 is a rebuttable or irrebuttable presumption. But the court notes that in Adams v. Adams, 691 So. 2d 10, 11 (Fla. Dist. Ct. App. 1997), the appellant "basically contended that the life of a judgment is twenty years and cannot be extended by an action on a judgment," but both the trial court and the appellate court rejected that argument.
3. Payment, Release, Accord and Satisfaction Defenses
Yosilyn Carl’s remaining defenses of payment, release, and accord and satisfaction are defenses that are available against an action on a judgment. Although release and accord and satisfaction are both defenses that are available against an action on a judgment and although they were mentioned as affirmative defenses in Yosilyn Carl’s answer, they are neither raised nor mentioned in her opposition to the bank’s summary judgment motion. These defenses are therefore deemed waived or abandoned. Vela, 276 F.3d at 278-79.
Yosilyn Carl did raise payment as an affirmative defense in her opposition, mostly in the context of the 6 F.S.M.C. 801 presumption of payment after twenty years. The bank acknowledges that numerous payments were made on the Civil Action No. 1996-060 judgment, but avers that the judgment was never wholly satisfied.
"[I]n an action on a judgment there is a rebuttable presumption that a judgment remains in full force and unsatisfied. The plaintiff does not bear the burden of proving that the judgment has not been satisfied." Rutledge v. Rutledge, 357 So. 2d 466, 467 (Fla. Dist. Ct. App. 1978) (citation omitted).
Yosilyn Carl’s contention that the Civil Action No. 1996-060 judgment was paid and satisfied was based on her reliance on 6 F.S.M.C. 801, and, since the 6 F.S.M.C. 801 presumption never came into effect because of the timely filing of this action, it cannot overcome the bank’s claim that the Civil Action No. 1996-060 judgment is only partially satisfied. The court is confident that that is correct. However, the court is not so confident, as the bank is, about the extent of the partial satisfaction, which is discussed in the next section.
D. Judgment Amount
The bank conceded at oral argument that since the judgment on which this action on a judgment is based bears 7% interest, that the judgment entered in this case should also bear 7% interest. The bank also directed the court’s interest to its supporting documents.
Attached to the bank’s complaint, and to its motion, is an affidavit from a bank officer verifying the attached "Judgment Payment History" for the February 11, 1999 judgment on the Carls’ loan. No contrary evidence was provided. Normally, the court would accept this evidence as an accurate account of what was owed if the affidavit and the ledger sheet were regular on their face. But this payment history does not seem regular or normal on its face. The amount paid on the judgment is listed as the round amount of $33,720, but there is one payment listed - $7,481.77 on March 2, 2009 - that is an odd amount. That odd amount should be reflected in the total payments amount, but is not. The numbers do not add up.
The amount listed as the current per diem interest accrual cannot be correct, either. It also does not look right. It states that the interest is currently accruing at the rate of $6.19 per day ("the per diem rate"). The application of a little high school algebra[4] reveals that for $6.19 to be the correct per diem rate at 7%, the principal amount that the interest would be accruing on would have to be $32,276.43. That figure does not correspond to any amount in the bank’s judgment payment history. Nor does the court have any idea why that figure would be used as the principal. It occurred to the court that perhaps the bank was compounding the interest, although it should not be doing so. The interest on judgments is simple interest; it is not to be compounded. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM R. 664, 670 (App. 1996). But that would not make enough difference to account for the discrepancy either.
The court will therefore grant summary judgment only in part - summary judgment that the defendants are jointly and severally liable for the unsatisfied portion of the February 11, 1999 Civil Action No. 1996-060 judgment. The bank will be required to submit new evidentiary calculations of what portion of the Civil Action No. 1996-060 judgment remains unsatisfied. Furthermore, it will be required to explain how it arrived at those figures and what methodology it used.
IV. CONCLUSION
Accordingly, defendant Yosilyn Carl’s motion to dismiss is denied and the FSM Development Bank’s summary judgment motion is granted in part. The defendants are jointly and severally liable for the unsatisfied portion of the February 11, 1999 Civil Action No. 1996-060 judgment, with the amount of that liability to be determined later.
The bank shall, no later than November 21, 2019, file and serve its documentation of the amount that should still be due on the Civil Action No. 1996-060 judgment, along with whatever motion and supporting papers it deems necessary. Any defendant may file and serve a response by December 12, 2019. The bank may file and serve any reply by December 23, 2019.
* * * *
[1] While FSM courts are not bound to adopt common-law principles, they are authorized by statute, 1 F.S.M.C. 203, to use the Restatements of the Law to determine and apply the common law in the absence of written law while keeping in mind its suitability for the FSM. Iriarte v. Individual Assurance Co., 18 FSM R. 340, 365 (App. 2012); Loch v. FSM, 1 FSM R. 566, 570 n.2 (App. 1984); FSM v. GMP Hawaii, Inc., 17 FSM R. 555, 580 n.14 (Pon. 2011). "The FSM Code permits the restatements to be used when applying rules of common law in the absence of written law." Pohnpei v. AHPW, Inc., 14 FSM R. 1, 24 (App. 2006)(citing 1 F.S.M.C. 203). Courts are statutorily authorized, under both FSM national and Pohnpei state law, to consider the common law as expressed in the ALI Restatements of Law. Iriarte, 18 FSM R. at 355 n.3 (citing 1 Pon. C. § 1-123 and 1M.C. 203).
[2] The Estate of Yoshiro Carl’s response to the summary judgment motion asserts that after Yoshiro Carl’s death Liarl took control of all Yosl Yoshiro Carl’s assets, including the mortgaged leasehold.
[3] See, e.g., Northern Marianas Housing Corp. v. Finik, 12 FSM R. 441 (Chk. 2004); Coca-Cola Beverage Co. (Micronesia) v. Edmond, 8 FSM R. 388
(Kos. 1998); Joeten Motor Co. v. Jae Joong Hwang, 7 FSM R. 326 (Chk. S. Ct. Tr. 1995); Latte Motors, Inc. v. Hainrick, 7 FSM R. 190
(Pon. 1995); J.C. Tenorio Enterprises, Inc. v. Sado, 6 FSM R. 430 (Pon. 1994).
[4] .07x÷365=$6.19. Solve for x. First, multiply each side of the equation by 365.
.07x=$2,259.35
Then, divide each side of the equation by .07.
x=$32,276.4286
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