Cite as Panuelo v. Amayo,11 FSM Intrm. 83 ( App. 2002)

[11 FSM Intrm. 83]

APPEAL CASE NO. P4-2001

Decided: July 31, 2002

APPEARANCES:

HEADNOTES

Appellate Review – Stay

In some cases, an abuse of discretion may be found when the trial court rejects, as an alternative to a full cash bond, a supersedeas bond of which a portion of the bond is in cash and a portion is in the form of a property mortgage. Panuelo v. Amayo, 11 FSM Intrm. 83, 85 (App. 2002).

Appellate Review – Decisions Reviewable

A single justice's decisions are reviewable by the court and may be so reviewed when a full appellate panel of judges has been assembled. Panuelo v. Amayo, 11 FSM Intrm. 83, 85 (App. 2002).

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[11 FSM Intrm. 84]

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On April 24, 2002, appellant filed a supersedeas bond consisting of (1) a cashier's check in the amount of $50,000; and, (2) a mortgage on certain real property in favor of the FSM Supreme Court, to secure payment of the judgment below in the amount of $388,895.50 plus costs and statutory interest.

My Order dated March 25, 2002 required appellant to post the $50,000 cash deposit with the Clerk of the Appellate Division, and stated that forty percent of that amount would "be paid immediately to appellees to be used to pay appellees' expenses due to Mr. Amayo's paralysis," and that the remainder would be placed in an interest bearing account pending the outcome of the appeal. Panuelo v. Amayo, 10 FSM Intrm. 558, 565 (App. 2002). The Order further stated that the mortgage submitted by appellant would be immediately recorded and held in trust by the Clerk of the Appellate Division pending resolution of this case on appeal.

On April 25, 2002, I approved the supersedeas bond and ordered appellees to document by affidavit that the $20,000 would be used to pay for Mr. Amayo's medical expenses and appellees' living expenses while this case is pending on appeal. Accordingly, I ordered that appellees submit for my review documentation of expenses incurred by appellees due to Mr. Amayo's paralysis, including Mr. Amayo's medical expenses and living expenses of appellees, and to propose how the $20,000 will be used to pay such expenses. My order stated that, upon review and approval of appellees' proposed expenditures, I would order distribution of the $20,000. In response, appellees filed a motion for distribution, and attached an affidavit which was executed by Mr. Amayo more than two years earlier, on January 25, 2000, for the purpose of substantiating his damages at trial. In his motion for distribution, appellees' counsel first argues that the entire $50,000 cash bond should be released to appellees without condition. Then he argues that, at a minimum, the $20,000 should be released to appellees without condition, based on my March 25, 2002 order. He finally argues that my April 25, 2002 order should be vacated, as appellees did not have an opportunity to oppose appellant's "Request by Appellant for Court Imposed Procedures Related to Appellees' Use of Supersedeas Bond" before I issued that order. Appellees' counsel's argument is based on the erroneous assumption that I based my April 25, 2002 order on appellant's "Request." However, my April 25, 2002 order was based upon my statement in my March 25, 2002 order that I would review and either accept or reject appellant's supersedeas bond within 40 days of the date of that order.

Counsel for appellees also apparently interprets my April 25, 2002 order to impose new conditions on the release to them of the $20,000; however, the April 25, 2002 order merely clarifies my statement in my March 25, 2002 order requiring that the $20,000 "be used to pay appellees' expenses due to Mr. Amayo's paralysis." Panuelo, 10 FSM Intrm. at 565. Accordingly, appellees' motion to vacate that order is denied.

Appellees also have filed a motion for relief from my March 25, 2002 and April 25, 2002 orders. Appellees request that the "full panel of the Appellate Division" review my actions in these orders. See Reply Memo in Support of Distribution at 6 (June 6, 2002). Rule 27(c) the FSM Rules of Appellate Procedure states that "[t]he action of a single justice may be reviewed by the Court." FSM App. R. 27(c). Also, in their reply memorandum in support of motion for relief from order, appellees request relief from my November 21, 2001 order issuing a temporary stay and permitting appellant the opportunity to submit a supersedeas bond without a cash surety.

Appellees assert that my November 21, 2001 order was improper because I did not find that the

[11 FSM Intrm. 85]

trial court abused its discretion in rejecting appellant's supersedeas bond. However, implicit in that order is that I did find an abuse of discretion in requiring a full cash bond in this case. The record clearly demonstrates that the trial court contemplated accepting the appellant's mortgage as security and forming a trust. As a precondition to establishing that trust, the trial court contemplated requiring appellant to submit 10 percent of the total amount of the supersedeas bond, or approximately $38,000, in cash. The trial court asked each party to submit a brief on this issue, and it is clear that appellant was taking steps to secure financing to submit a portion of the bond in cash, conditioned on the trial court approving a bond in that form. The trial court considered this alternative to a full cash bond and rejected it. It is there that I found an abuse of discretion, and accordingly permitted appellant to file a portion of the bond in cash and a portion in the form of a mortgage of property.

As stated above, appellees have requested that the Appellate Division review these three orders. Appellate Rule 27(c) states that decisions of a single justice are reviewable "by the Court." Besides the trial court judge, I currently am the only constitutionally appointed justice sitting on the FSM Supreme Court. When this situation changes, it will be possible to assemble a panel of judges consisting of a majority of constitutionally appointed justices, and my decisions may be reviewed by "the Court." However, at this time I deny appellees' motion for relief from my orders dated November 21, 2001, March 25, 2002, and April 25, 2002.

As for appellees' affidavit and motion for distribution, I find that they are not in compliance with the conditions set forth in my March 25, 2002 and April 25, 2002 orders. Those orders clearly required that the $20,000 be distributed to pay for Mr. Amayo's medical expenses and appellees' living expenses while this case is pending on appeal. Accordingly, I ordered that appellees submit for my review documentation of expenses incurred by appellees due to Mr. Amayo's paralysis, including Mr. Amayo's medical expenses and living expenses of appellees, and to propose how the $20,000 will be used to pay such expenses. My order stated that, upon review and approval of appellees' proposed expenditures, I would order distribution of the $20,000. Mr. Amayo's affidavit executed more than two years ago does nothing besides demonstrate a lack of communication between appellees' counsel and his clients. There is no indication that Mr. Amayo or his family are even aware of the proposed distribution of $20,000 to them. What I am trying to do is insure that Mr. Amayo and his family are aware of this distribution, that they are protected while this appeal is pending, and that they determine how the $20,000 will be spent to meet their needs.

Appellees' counsel clearly has misinterpreted my April 25, 2002 order to require that appellees document every expense with a receipt or proof of payment. Appellees' needs are clear. However, I want to be sure these needs are met while the stay of execution is in place pending resolution of this appeal.

Accordingly, I deny appellees' motion for distribution until they comply with my March 25, 2002 and April 25, 2002 orders.

Accordingly, it is hereby ordered that appellees' motion for distribution is hereby denied, and appellees' motion for relief from my November 21, 2001, March 25, 2002, and April 25, 2002 orders is also hereby denied.