FSM SUPREME COURT
TRIAL DIVISION
Cite as Island Cable TV-Chuuk v. Aizawa ,
8 FSM Intrm. 104 (Chk. 1997)

[8 FSM Intrm. 104]

ISLAND CABLE TV-CHUUK,
Plaintiff,

vs.

SUSUMU AIZAWA,
Defendant.

CIVIL ACTION NO. 1995-1014

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Richard H. Benson
Associate Justice

Trial:  April 23-24, 1997
Decided:  June 24, 1997

APPEARANCES:
For the Plaintiff:          John Hollinrake, Esq.
                       Law Offices of Hollinrake & Saimon
                       P.O. Box 1450
                       Kolonia, Pohnpei FM 96941

For the Defendant:     Johnny Meippen, Esq.
                       P.O. Box 705
                       Weno, Chuuk FM 96942

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HEADNOTES
Civil Procedure ) Injunctions
     Chuuk State Supreme Court Rule of Civil Procedure 65(c) requires security for the issuance of a temporary restraining order.  Island Cable TV-Chuuk v. Aizawa, 8 FSM Intrm. 104, 105 (Chk. 1997).

Torts ) Malicious Prosecution
     The five elements of the tort of malicious prosecution or wrongful or unjustified initiation of a civil suit are satisfied when:  1) the defendant initiated the civil litigation, 2) the litigation was resolved in the plaintiff's favor, 3) the defendant did not have probable cause to initiate the civil litigation,

[8 FSM Intrm. 105]

4) the defendant exhibited malice or ill will, and 5) the litigation caused significant interference with the plaintiff's property.  Island Cable TV-Chuuk v. Aizawa, 8 FSM Intrm. 104, 106-07 (Chk. 1997).

Civil Procedure ) Injunctions
     A temporary restraining order may only be granted without notice if there is a showing that notice should not be required and of any attempts to give notice to the opponent.  Island Cable TV-Chuuk v. Aizawa, 8 FSM Intrm. 104, 107 (Chk. 1997).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     This case was tried before me on April 23 and 24, 1997.  The plaintiff appeared by counsel.  The defendant appeared in person and by counsel.  Based upon the evidence presented at trial, I make the following

Findings of Fact
     1.  This is an action for damages for wrongful initiation of a civil suit (malicious prosecution), for failing to furnish security for a temporary restraining order, and for violation of civil rights.  This action arises out of Chuuk State Supreme Court Civil Action No. 16-92, Susumu Aizawa v. Masataka Mori, a land dispute commenced February 12, 1992.

     2.  Masataka Mori was a shareholder in a domestic corporation, which, in equal partnership with a foreign corporation, did business as Island Cable TV (Cable), the plaintiff herein.

     3.  On December 16, 1992, Susumu Aizawa filed an Ex Parte Motion for a Temporary Restraining Order to restrain Masataka Mori "and his agents, including but need not be limited to Island Cable TV-Chuuk."  The memorandum of points and authorities in support of the motion included this sentence. "Granting of the above motion will pose no harm to the defendant and his agents because the defendant and his agents can simply move their satellite disk [sic] to their land within the vicinity of Bayview."

     4.  On December 18, 1992, the state court granted the motion and issued a temporary restraining order restraining Masataka Mori and "his agents including Island Cable TV-Chuuk" from "constructing and/or installing an [sic] satellite disk [sic] on [certain land including the building in which Cable had its business]."  The temporary restraining order was issued without security.  Security is required by Rule 65(c) of the Rules of Civil Procedure of the State Court of Chuuk.

     5.  On January 7, 1993, based on Susumu Aizawa's motion with supporting documents, the state court issued a second Temporary Restraining Order.  The ones restrained are the same as earlier, "the defendants [sic] and his agents including Island Cable TV-Chuuk."  This order repeated the earlier restraint and added this further restraint:  "from using any building, structure, satellite disks [sic] or other structure that stand on the land in dispute in the above entitled lawsuit for the purpose of transmitting, telecasting, televising and/or emitting television programs . . . ."  This temporary restraining order was issued without security.

     6.  On January 13, 1993 the state court, concluding that the temporary restraining order was wrongly issued, vacated the Temporary Restraining Order of January 7, 1993 for failure of Susumu

[8 FSM Intrm. 106]

Aizawa to show irreparable harm and failure to post security.  These failures violated Rule 65(b) and (c) of the Rules of Civil Procedure of the State Court of Chuuk.

     7.  On February 5, 1993, the state court conducted a preliminary injunction hearing on the application of Susumu Aizawa.  On February 9, 1993, the court issued its order denying the application on the ground that Susumu Aizawa had not established irreparable injury.

     8.  On December 18, 1992, Cable had not yet begun broadcasting.  Cable expected the dish to be assembled by December 21, which would enable broadcast of several live signals received from the satellite.  Cable complied with the order by discontinuing work.  On December 31, 1992, Cable began broadcasting recorded programs.  On January 5, 1993, the installation of the dish was completed.  On January 7, 1993, broadcasting of live programs began.  All broadcasting stopped on January 8, 1993, in obedience to the January 7, 1993 temporary restraining order.  Operation resumed after this order was vacated on January 13, 1993.

     9.  Cable's customers and the public expressed marked dissatisfaction with the broken expectations resulting from the delays and interruptions which were caused by the temporary restraining orders alone.

     10.  As a result of the temporary restraining orders Cable lost income of $5,808.00 from its subscribers.

     11.  As a result of the temporary restraining orders Cable's expenses for salaries, for fees to suppliers for receiving programs and for fees for taping programs in the United States for later broadcast in Chuuk continued during the two periods of the orders.  These fees and expenses totalled $16,650.72.

     12.  The defendant failed to have probable cause for bringing his motion for a temporary restraining order in that he established no irreparable injury, either by the completion of the assembly of the dish or from the broadcasting.

     13.  In December 1992 and January 1993 Susumu Aizawa thought Cable was owned by Masataka Mori.  He made no inquiry into the matter before filing for temporary restraining orders.

     14.  Susumu Aizawa made an inadequate effort to comply with the procedural requirements of Rule 65(b) and (c).  No specific facts were alleged to show how he would be irreparably harmed.  To allege that causing Cable to stop work on the dish would cause no harm to Cable is patently incorrect.

     15.  In seeking to bar Cable from broadcasting nothing has been shown that this would cause irreparable harm to Susumu Aizawa in his land claim.  Ill will of Susumu Aizawa toward Masataka Mori which harmed Cable is inferred from the testimony which shows the assembly of the dish was completed January 5, 1993, and live broadcasting of satellite signals began January 7, 1993 ) marked by a modest celebration with island leaders ) the same day that the second temporary restraining order was sought and issued.

     Based on the foregoing findings of fact, I make the following

Conclusions of Law
     The five elements of malicious prosecution (wrongful or unjustified initiation of a civil suit) have been established.  See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 120 (5th ed.

[8 FSM Intrm. 107]

1984).  The parties agree on the law governing this case.

     1.  Susumu Aizawa initiated the two temporary restraining orders.

     2.  The temporary restraining orders were resolved in the plaintiff's favor.  The first apparently expired 14 days after December 18, 1997, pursuant to the provisions of Rule 65(b).  The second was vacated by order of the state court.

     3.  Susumu Aizawa failed to show probable cause to justify either of his two ex parte applications.

     4.  The element of malice necessary to support this action is established by the following facts showing that ill will prompted the applications for temporary restraining orders.

     a)  No probable cause was shown.

     b)  The defendant made no inquiry at all as to the ownership and business organization of the plaintiff.  His actions thus affected a non-party.

     c)  The defendant's applications reflect minimal adherence to the requirements of Rule 65(b) and (c) as to specifying facts showing irreparable injury and providing security.  As to the security, the court may have given credence to defendant's assertion that a temporary restraining order would "pose no harm to [Masataka Mori] and his agents."  The orders prevented Cable from conducting business.  The order did harm.  The likelihood of that harm is apparent.

     d)  Rule 65(b) states that a temporary restraining order may only be granted without notice if there is a showing that notice should not be required and of any attempts to give notice to the opponent.  None of the safeguards in the rule were followed by the defendant.

     e)  On December 18, 1996, the assembling of the dish was almost complete. That was apparent.  The completion would not have harmed the defendant in his land claim.  That too was apparent.

     f)  On January 7, 1997, the defendant applied for a temporary restraining order against further work on the dish.  The work on the dish was completed by January 7, 1997.  The application also asked that broadcasting be restrained. Broadcasting, however, obviously could not affect the defendant's land claim.

     5.  The defendant caused significant interference with Cable's property ) its ability to use its property and conduct its business operations.  The plaintiff is entitled to its special damages caused by the compelled cessation of its business activities.

     Judgment will accordingly be entered in favor of the plaintiff against the defendant for $22,458.72.

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