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     An application for a stay of an order of the court pending appeal must ordinarily be made in the first instance in the court appealed from. Amayo v. MJ Co., 13 FSM Intrm. 259, 261 (Pon. 2005).

     Irrespective of any stipulation of the parties, the court must still determine whether the orders in question are suitable for certification for appeal pursuant to Appellate Rule 5(a). The court may not certify orders by virtue of the fact that the parties have stipulated to a stay. Amayo v. MJ Co., 13 FSM Intrm. 259, 262 (Pon. 2005).

     When an FSM Supreme Court justice in the trial division, in making in a civil action an order not otherwise appealable under Appellate Rule 4(a), is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the justice shall so state in writing in such order. The remaining article IX, section 3 FSM Supreme Court justices(s), acting as the appellate division, may permit an appeal to be taken from such order. Amayo v. MJ Co., 13 FSM Intrm. 259, 262 (Pon. 2005).

     Certification under Appellate Rule 5(a) requires a prescribed statement from the trial court why an interlocutory appeal should be permitted. The determination to certify an order under Rule 5(a) lies within the trial court’s sound discretion. Even then, a second exercise of discretion by the appellate division is required before the appeal may proceed. Amayo v. MJ Co., 13 FSM Intrm. 259, 263 (Pon. 2005).

     Permitting the appeal to proceed is at the appellate court’s discretion after the trial court’s discretionary Appellate Rule 5(a) certification. It is only in exceptional circumstances that the trial court should certify an interlocutory order for immediate appeal. In sum, for the appellate division to have jurisdiction over an appeal under Rule 5(a), the trial court must certify the question and the appellate court must thereafter grant permission for the appeal to go forward. Amayo v. MJ Co., 13 FSM Intrm. 259, 263 (Pon. 2005).

     An order denying or granting discovery ordinarily does not present a controlling question of law so as to allow immediate appeal under Appellate Rule 5(a) and is thus a nonappealable interlocutory order which is reviewable only upon final judgment or order. Nor is an order granting or denying a motion in limine to exclude testimony appropriate for certification, since it is an interlocutory ruling on evidence. Amayo v. MJ Co., 13 FSM Intrm. 259, 263 (Pon. 2005).

     A trial court’s Appellate Rule 5(a) certification is subject to an abuse of discretion standard. Amayo v. MJ Co., 13 FSM Intrm. 259, 263 (Pon. 2005).

     Under Appellate Rule 5(a), orders cannot be certified for immediate appeal unless they meet the standard set out therein: they must involve a controlling question of law as to which there is substantial ground for difference of opinion such that an immediate appeal from the order may materially advance the ultimate termination of the litigation, and when the orders in question do not meet this standard, the request for certification must be denied. Amayo v. MJ Co., 13 FSM Intrm. 259, 263 (Pon. 2005).

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     On May 5, 2005, Panuelo filed his Motion Re: Appeal Under FSM App. R. 5(a). On May 16, 2005, the Amayos filed their response. During the pendency of proceedings before the appellate division, this order governs.

     It is hereby ordered that pursuant to the discussion had on the record at the hearing on April 26, 2005, and further pursuant to Rule 8(a) of the FSM Rules of Appellate Procedure, trial division proceedings in this case are stayed pending the resolution of proceedings before the appellate division.

     It is further ordered that during the pendency of appellate proceedings, Panuelo will make payments of $500 a month to the plaintiffs’ counsel. In the event that any payment is not received, the Amayos will notify the court, and this matter will be set for an OSC hearing.

     It is further ordered that, as explained below, Panuelo’s request for certification under Rule 5(a) of the FSM Rules of Appellate Procedure is denied.

     It is further ordered that plaintiffs’ May 5, 2005 request for sanctions in the amount of $722.23 is held in abeyance pending the conclusion of appellate proceedings.

1. Considerations under Rule 8 of the FSM Rules of Appellate Procedure.

     Rule 8 of the FSM Rules of Appellate Procedure provides in part that the "[a]pplication for a stay of . . . [an] order of the court . . . pending appeal . . . must ordinarily be made in the first instance in the court appealed from."

     On April 26, 2005, the court was present in Pohnpei at the time calendared, and was ready to proceed with the re-trial. In reliance upon the joint representation of the parties that they had reached a stipulation regarding conditions for a stay, the trial did not go forward as scheduled, and the court determined to stay further trial proceedings pending resolution of matters to be raised before the appellate division. In material part the parties’ representations to the court in support of the stipulation were 1) that Panuelo would make payments of $500 a month to the Amayos; and 2) that none of that amount would be used for attorney’s fees. During the stay, Panuelo was to pursue issues before the

[13 FSM Intrm. 262]

appellate division regarding Alfredo Amayo’s deposition, Panuelo’s attempt to subpoena Alfredo Amayo for trial, and the denial of Panuelo’s recusal motion. However, the manner in which Panuelo was to pursue those issues was for him to determine.

     Panuelo now contests the parameters of his part of the representation. He seeks to retreat from his commitment to make $500 a month payments to the plaintiffs while the matter is taken to the appellate division. He now contends that if the court does not certify orders for appeal under Appellate Rule 5(a), then he should no longer have to make payments, and indeed requests the return of the one payment made thus far. The court rejects these contentions. No mention of certification was made at the April 26, 2005 hearing. The $500 monthly payment, as evidenced by Amayo’s stipulation on the point, addressed the impact on the plaintiffs of the unavoidable delay resulting from appeal proceedings. Panuelo now has the benefit of the stay and may pursue such avenues before the appellate division as he sees fit. Also, a not insignificant concern to the court is that it had traveled to Pohnpei and was ready to begin trial, but the trial did not go forward based on the representations made at the hearing. On this point, the parties are put on notice that as part of any sanction for failure to make the $500 monthly payments, the court may also consider imposing a prorated portion (prorated because the court traveled to Pohnpei for two trials) of the expenses the court incurred in coming to Pohnpei for the re-trial.

     Accordingly, the court rejects any contention that Panuelo’s obligation to make the $500 month payments to the Amayos is dependent upon certification under Rule 5(a) of the court’s prior orders. The payments will be made pending resolution of appellate proceedings. The payments do not hinge on certification. The payment for May, 2005, will be made no later than May 31, 2005, all payments thereafter to be made by the 26th of each month.

2. Considerations under Rule 5(a) of the FSM Rules of Appellate Procedure.

     The court considers the merits of Panuelo’s request for certification. He asks the court to make a certification under Rule 5(a) of the FSM Rules of Appellate Procedure of this court’s orders of April 18, 2005, and April 21, 2005, as they relate respectively to the deposition of Alfredo Amayo and the quashing of the subpoena, issued at the request of Panuelo, to cause Alfredo Amayo to appear at trial. (The court’s denial of the recusal motion made on the record at the April 26, 2005 hearing does not figure in the request because Panuelo anticipates pursuing a petition for writ of prohibition on this question). The request for certification was not made at the hearing on April 26, 2005, and such a certification did not figure in the court’s thinking when it determined to stay the proceedings. Irrespective of any agreement between the parties regarding stipulation, the court must still determine whether the orders in question are suitable for certification. The court may not certify the orders by virtue of the fact that the parties have stipulated to a stay.

     Rule 5(a) of the FSM Rules of Appellate Procedure provides in part as follows:

(emphasis added). The orders of April 18 and 21, 2005, do not fall within any of the categories

[13 FSM Intrm. 263]

specified in Rule 4(a) of the appellate rules. Thus Rule 5(a) comes into play. Certification under that rule requires a prescribed statement from the trial court why an interlocutory appeal should be permitted. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 77 (Kos. 1982). The determination to certify an order under Rule 5(a) lies within the sound discretion of the trial court. Cronovich v. Dunn, 573 F. Supp. 1340, 1342 (E.D. Mich. 1983). Even then, a second exercise of discretion by the appellate division is required before the appeal may proceed: Rule 5(a) provides that the appellate division "may" permit the appeal after the certification by the trial division. Thus permitting the appeal to proceed is at the discretion of the appellate court after the discretionary certification by the trial court occurs. Cronovich, 573 F. Supp. at 1342. It is only in exceptional circumstances that the trial court should certify an interlocutory order for immediate appeal. Id. In sum, for the appellate division to have jurisdiction over an appeal under Rule 5(a), the trial court must certify the question and the appellate court must thereafter grant permission for the appeal to go forward. Tidelands Royalty B Corp. v. Gulf Oil Corp., 804 F.2d 1344, 1348 (5th Cir. 1986).

     In McCann v. Communication Design Corp., 775 F. Supp. 1506, 1533, reconsideration denied, 1991 WL 336760 (D. Conn. 1991), after the trial court limited the plaintiff’s discovery, the plaintiff filed a recusal motion that the trial court determined was undertaken "in hope of finding a way to undo the court’s decision bifurcating the trial and limiting discovery." Alternatively with a motion for reconsideration, the plaintiff also filed a motion to certify the court’s discovery order under 28 U.S.C. § 1292(b). McCann, 775 F. Supp. at 1533. (This U.S. statute contains the certification language incorporated into FSM Appellate Rule 5(a).) In denying the motion to certify, the court found that an order denying or granting discovery ordinarily does not present a controlling question of law so as to allow immediate appeal and is thus a nonappealable interlocutory order which is reviewable only upon final judgment or order. Id. at 1534. By way of further example, an interlocutory appeal from order granting discovery over claim of attorney-client privilege would not "materially advance the ultimate termination" of the litigation, and is thus not suitable for certification for interlocutory appeal. Kockums Indus. v. Salem Equip., Inc., 561 F. Supp. 168, 174 (D. Or. 1983). Nor is an order granting a motion in limine to exclude testimony appropriate for certification, since it is an interlocutory ruling on evidence. Clem v. Erlbaum, 584 F. Supp. 908, 908-09 (E.D. Pa. 1984). The reverse of the Erlbaum case is presented here, since the motion in limine to exclude the deposition testimony of plaintiff Alfredo Amayo was denied, and not granted. The principle still applies. Lastly, certification is subject to an abuse of discretion standard. PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir. 1996) (improper to certify for immediate appeal denial of motion to amend pleadings in the absence of a showing of hardship or danger warranting immediate appeal); American Family Life Assur. Co. v. United States Fire Ins. Co., 794 F.2d 629, 630-31 (11th Cir. 1986) (per curiam) (error for district court to certify question concerning the liability of a primary and excess liability insurance carrier), appeal after remand, 885 F.2d 826, reh’g denied, 892 F.2d 89 (11th Cir. 1989); International Soc’y for Krishna Consciousness, Inc. v. Air Canada, 727 F.2d 253, 256 (2d Cir. 1984) (certification improvidently granted of order denying airlines’ motion to dismiss civil rights action based on lack of subject matter jurisdiction where plaintiff religious group claimed airline’s conduct constituted state action).

     Panuelo has not offered any authority that, given their nature, the court can certify the orders of April 18 and 21, 2005. Under Rule 5(a) of the FSM Rules of Appellate Procedure, orders cannot be certified for immediate appeal unless they meet the standard set out therein: they must "involve a controlling question of law as to which there is substantial ground for difference of opinion [such that] an immediate appeal from the order may materially advance the ultimate termination of the litigation." The orders in question do not meet this standard. Panuelo’s request for certification is accordingly denied.

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