THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Senda v. Trial Division ,
6 FSM Intrm. 336 (App. 1994)

[6 FSM Intrm. 336]

AMBROS SENDA,
Petitioner,

vs.

TRIAL DIVISION OF THE SUPREME COURT
OF THE FEDERATED STATES OF MICRONESIA,
Respondent,

CREDITORS OF MID-PACIFIC CONSTRUCTION CO. INC.,
Real Party in Interest.

APPEAL CASE NO. P21-1993

OPINION

Submitted:  January 4, 1994
Decided:  February 17, 1994

BEFORE:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Petitioner:     R. Barrie Michelsen, Esq.
                                    Law Offices of R. Barrie Michelsen
                                    P.O. Box 1450
                                    Kolonia, Pohnpei FM 96941

For the Real Party     Daniel J. Berman, Esq.
in Interest:                   Rush, Moore, Craven, Sutton, Morry & Beh
                                    2000 Hawaii Tower
                                    745 Fort Street
                                    Honolulu, HI 96813-3862

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HEADNOTES
Mandamus
     The writ of mandamus is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear non-

[6 FSM Intrm. 337]

discretionary duty.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

Mandamus
     A writ of mandamus may only force a ministerial act or prevent a clear abuse of power and cannot be used to test or overrule a judge's exercise of discretion.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

Mandamus
     Mere legal error by a judge, even gross legal error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ of mandamus.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

Mandamus
     The party seeking a writ of mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

Mandamus
     Where the most the petitioner alleges is that the trial justice committed gross legal error and where the matter is already on appeal a writ of mandamus will not issue because it was not shown that the trial justice breached a duty, ministerial in nature, or that he had engaged in a clear abuse of power.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

Appeal and Certiorari ) Stay
     An appellant may apply to the trial division for a stay of judgment.  If the stay is denied by the trial division he may apply to the appellate division.  If the stay is granted and its terms seem onerous, the petitioner may apply to the appellate division for a modification of the stay, and may also request an expedited briefing schedule.  Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

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COURT'S OPINION
PER CURIAM:
     On October 5, 1993, the current trial justice in Mid-Pacific Construction Co. v. Senda, Civil Action No. 1988-099 entered an order granting the plaintiff's Petition for Relief from a Prior Order pursuant to Civil Rule 60 in whole, and Petition to Confirm Statement of the Account in part.  That order increases the defendant's financial liability by a substantial, but yet undetermined sum by amending a previously rendered judgment.  Defendant Ambros Senda filed a notice of appeal from that order on November 15, 1993, pursuant to FSM Appellate Rule 3.  The Clerk assigned it docket number P21-1993.

     On January 4, 1994, appellant Senda filed, pursuant to FSM Appellate Rule 21(a), a Petition for a Writ of Mandamus.  A  memorandum of law in support of such a petition had been filed earlier.  The petition seeks an order to the Trial Division to vacate its October 5, 1993 order in Civil Action No. 1988-099. Pursuant to Appellate Rule 21(b), on January 18, 1994, we requested an answer from the Creditors of Mid-Pacific Construction Co., the real party in interest, solely on the issue of the availability of a writ of mandamus in this matter.  This answer was filed on January 28, 1994, and on February 4, 1994, the petitioner filed a response to the answer.

[6 FSM Intrm. 338]

     We deny the petition for a writ of mandamus.  Our reasoning follows.

     This court has the power to issue a writ of mandamus.  4 F.S.M.C. 117. The writ of mandamus "is a coercive writ . . . used to require an official to carry out some affirmative act."  In re Main, 4 FSM Intrm. 255, 258 (App. 1990).  It "`is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal, but to require an official to carry out a clear non-discretionary duty.'"  Id. (quoting In re Raitoun, 1 FSM Intrm. 561, 562 (App. 1984)).  Its "`traditional use . . . is to compel public officials to perform some clear duty which is ministerial in nature, that is, which is not subject to the discretion or judgment of the official.'"  Id. (quoting Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982)).  A writ of mandamus "may only force a ministerial act or prevent a clear abuse of power" and cannot "be used to test or overrule a judge's exercise of discretion.  A clear duty which is being violated is a prerequisite to the issuance of [the] writ."  Id. (citation omitted).

     The petitioner asks us to order the trial justice to carry out the affirmative acts of vacating his October 5, 1993 order and denying the plaintiff's [herein the Real Party in Interest] Petition for Relief from a Prior Order and his Petition to Confirm Statement of the Account.  In the past we have stated that "[i]n extraordinary circumstances, this court may grant a writ of prohibition or mandamus to correct trial court decisions before final judgment."  In re Main, 4 FSM Intrm. at 258.  In the present case, however, the petitioner seeks a writ to correct a trial court's order that, in effect, amends a final judgment.  That order was already on appeal when the petition for a writ of mandamus was filed.

     We thus find instructive the following comments of other courts.  "The peremptory writ of mandamus has traditionally been used in the federal courts only `to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'" Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed. 2d 305, 310 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185, 1190 (1943)).  "[M]ere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ."  United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972) (citing Will, 389 U.S. at 95, 88 S. Ct. at 273, 19 L. Ed. 2d at 310).  Furthermore, "the party seeking mandamus has `the burden of showing that its right to issuance of the writ is "clear and indisputable."'"  Will, 389 U.S. at 95, 88 S. Ct. at 273, 19 L. Ed. 2d at 310-11 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S. Ct. 145, 147, 98 L. Ed. 106, 112 (1953)).

     Petitioner here fails to show that his right to the issuance of a writ of mandamus is clear and indisputable.  He has not shown that the trial justice had a duty, ministerial in nature, to deny the Creditors' petitions or that, in granting them, he had engaged in a clear abuse of power.  Assuming, without deciding, that the petitioner's supporting arguments are correct, the most he alleges is that the trial justice committed gross legal error, in this one particular case, by granting the Creditors' petitions.  That presumed legal error is currently on appeal, and the record-ready certificate is about to be issued. Issuance now of a writ of mandamus would only serve as a substitute for the pending appeal.  The writ of mandamus remains an extraordinary remedy for exceptional circumstances.  The petition is therefore denied.

     Petitioner, in his pleadings, has expressed some concern over the burdensomeness of the regular appeal process in this particular case.  He may apply to the trial division for a stay.  If the stay is denied by the trial division he may apply to the appellate division.  FSM App. R. 8(a).  If the

[6 FSM Intrm. 339]

stay is granted and its terms seem onerous, the petitioner may apply to the appellate division for a modification of the stay.  He may also request an expedited briefing schedule.

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