FSM SUPREME COURT
TRIAL DIVISION
Cite as Bank of Guam v. O'Sonis,
9 FSM Intrm. 106 (Chuuk 1999)

[9 FSM Intrm. 106]

BANK OF GUAM,
Plaintiff,

vs.

ASSOCIATE JUSTICE MACHIME O'SONIS,
in his individual and official capacities,
and SAMUEL HARTMAN,
Defendants.

CIVIL ACTION NO. 1997-1057

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Richard H. Benson
Associate Justice

Trial:  January 25, 1999
Decided:  April 14, 1999

APPEARANCES:
For the Plaintiff:          Anita P. Arriola, Esq. (brief)
                                     Arriola, Cowan & Arriola
                                     P.O. Box X
                                     Hagatna, Guam 96910

                                     Fredrick L. Ramp, Esq. (argued)
                                     P.O. Box 1480
                                     Kolonia, Pohnpei FM 96941

[9 FSM Intrm. 107]

For the Defendant:     Manny Otoko, Trial Counselor
           (Hartman)         P.O. Box 903
                                     Wesley Simina, Esq. (supervising attorney)
                                     P.O. Box 94
                                     Weno, Chuuk FM 96942

For the Defendant:     Machime O'Sonis
            (O'Sonis)         P.O. Box 308
                                     Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Attorney, Trial Counselor and Client ) Fees
     In determining a reasonable attorney's fees award, the fair hourly rate in the locality is used; time devoted to travel is not included; and time records for intra-office consultations between attorneys, which duplicated the others time were reduced.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999).

Costs
     Costs that are an avoidable consequence of the prevailing party's actions will be disallowed.Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 110 & n.1 (Chk. 1999).

Costs
     Expenditures for photocopying, toll phone calls between lawyers, postage and courier services are disallowed.  The extra expense of first class air travel is also disallowed.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 111 (Chk. 1999).

Torts ) Abuse of Process
     One of the elements of abuse of process is that the process be used for an improper, ulterior purpose.  An ulterior purpose is one in which coercion is used to obtain a collateral advantage not properly involved in the proceeding.  The tort typically involves some form of extortion.  Some definite act not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 111 (Chk. 1999).

Torts ) Abuse of Process
     When an order and writ are manifestly improper, but their purpose was not collateral to the process used, one of the elements of the tort of abuse of process is not satisfied.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 111 (Chk. 1999).

Courts ) Judges; Torts ) Immunity
     A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function.  A judge loses the cloak of judicial immunity in only two events:  First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge's judicial capacity.  Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999).

Torts ) Immunity
     Absolute immunity affords complete protection from a damage award to a public official as long as the challenged act falls within the scope of the activity for which the immunity is conferred.Bank

[9 FSM Intrm. 108]

of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999).

Courts ) Judges; Torts ) Immunity
     The factors determining whether an act by a judge is a judicial one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.  The second question in deciding whether immunity exists is whether the judge acted in complete absence of all jurisdiction.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999).

Courts ) Judges; Torts ) Immunity
     Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.  A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 112 (Chk. 1999).

Attorney, Trial Counselor and Client ) Fees; Civil Rights; Costs
     In any civil rights action the court may award costs and reasonable attorney's fees to the prevailing party.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999).

Civil Rights
     Because of the similarity between the U.S. civil rights statute and 11 F.S.M.C. 701, FSM courts should consider the decisions of the United States in arriving at a decision, without being bound by them.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999).

Attorney, Trial Counselor and Client ) Fees; Civil Rights; Courts ) Judges
     Judicial immunity does not apply against the imposition of prospective injunctive relief.  The right to attorney's fees applies when prospective relief is granted against a judge pursuant to the civil rights statute.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999).

Torts ) Damages ) Punitive
     When a plaintiff is entitled to punitive damages against a defendant because he acted with malice, but that defendant has no net worth and there was a substantial damage, fee and cost award only a nominal punitive damage award is proper.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999).

Courts ) Judges; Torts ) Immunity
     Judicial immunity protects from liability for punitive damages.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 113 (Chk. 1999).

*    *    *    *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

     This matter was before the court on January 25, 1999 for trial on Count IV, Abuse of Process and to determine liability for and amount of damages and attorney's fees.  (All other issues raised by the complaint were decided on partial summary judgment on June 18, 1998 and the judgment entered August 12, 1998.) The plaintiff Bank of Guam appeared by counsel.  Defendant Justice O'Sonis appeared in person.  Defendant Hartman appeared in person and by counsel. After all parties rested

[9 FSM Intrm. 109]

they presented oral argument.  The matter was submitted for decision on the same day.

     After a careful consideration of all evidence, including that admitted during the application for a preliminary injunction on February 2, 1998, and of the arguments of the parties, I make the following

Findings of Fact.
     1.  Sometime in 1976 Fritz Hartman received payment for war claims.

     2.  Fritz Hartman died on January 15, 1989.

     3.  On May 1, 1989 trial counselor Machime O'Sonis, on behalf of Samuel Hartman, Fritz's brother, filed a petition in Chuuk State Supreme Court to probate Fritz's estate.  The case was removed to the FSM Supreme Court.  In re Estate of Hartman, 4 FSM Intrm. 386 (Chk. 1989).  Samuel Hartman was represented by counsel throughout the case's proceedings.

     4.  The FSM Supreme Court resolved the issues raised and determined the distribution of the estate's assets.  In re Estate of Hartman, 6 FSM Intrm. 326 (Chk. 1994).  Final judgment was entered on February 10, 1997.

     5.  On November 30, 1994, Samuel Hartman filed a petition in the Trial Division of the Chuuk State Supreme Court.  This commenced Probate Case No. 25-94. The petition alleged that 1976 war claim funds received by his brother Fritz Hartman had been deposited in the Bank of Guam, Chuuk Branch, and now belonged to him.  The petition sought a full accounting from the bank.  Samuel Hartman was and is represented by a trial counselor throughout Probate Case No. 25-94.  The Bank of Guam was not made a party to this action nor was it served with a summons or any other formal pleading.

     6.  The bank is not now a party to Probate Case No. 25-94.  It has never been a party, although it unsuccessfully tried to become a party.

     7.  Defendant O'Sonis, Hartman's first attorney in the earlier probate matter which had sought the same relief, presided over Probate Case No. 25-94.  Justice O'Sonis is a justice of the Chuuk State Supreme Court.  On May 9, 1995, he held that Hartman was the proper and right person to replace his brother on certain bank accounts and to have control of them.  Justice O'Sonis ordered the manager of the Bank of Guam, Chuuk Branch, to substitute the name of Fritz Hartman with the name of Samuel Hartman on the accounts.

     8.  The bank refused because those accounts had no money in them and had been closed for years.

     9.  Samuel Hartman then filed a civil action in the FSM Supreme Court alleging the Bank of Guam's conversion of the 1976 war claim funds. One claim was dismissed because it was barred by the statue of limitations.  Hartman v. Bank of Guam, Civ. No. 1995-1008 (Chk. Nov. 21, 1995).  The other claim was dismissed for lack of prosecution.  Hartman v. Bank of Guam, Civ. No. 1995-1008 (Chk. June 6, 1997).  Samuel Hartman was represented by counsel throughout these proceedings.

     10.  Hartman then applied for, and Justice O'Sonis granted, an Order for Aid of Judgment entered January 17, 1997.  The order recited that the bank had not followed the May 9, 1995 order and directed the bank to comply with it.

[9 FSM Intrm. 110]

     11.  The bank filed a motion to reconsider this order, contending that Hartman's claim was barred by res judicata.

     12.  The motion to reconsider was heard on July 16, 1997.  At the hearing the bank argued, in addition to res judicata, that the court had no jurisdiction over the bank since it was not a party to the action, that Justice O'Sonis was disqualified from hearing the case because of his prior representation of Hartman in an identical matter (the first Fritz Hartman probate case), that the claim was barred by collateral estoppel, and that the bank could not comply with the order because the accounts had long been closed.

     13.  Justice O'Sonis denied the reconsideration motion on September 8, 1997. In the order denying the motion he also ordered that execution would issue if the bank failed to comply with the Order in Aid of Judgment within 30 days.

     14.  Another judge denied the bank's motion to disqualify Justice O'Sonis on the ground that the bank was not a party.

     15.  On November 13, 1997, Justice O'Sonis issued a Writ of Execution, ordering the bank to pay $167,976.40, which sum included interest of over $111,000.00.

     16.  The bank moved for a stay of the writ pending appeal.  The motion was denied because the bank was not a party.

     17.  Justice O'Sonis borrowed from the Bank of Guam and in 1995 was delinquent in his payments.  The bank took possession of one of his paychecks in accordance with a power of attorney he had signed.  This angered Justice O'Sonis.  The payments were still delinquent in February 1998.

     18.  Justice O'Sonis has a personal bias against the Bank of Guam.

     19.  Justice O'Sonis at no time acted in his individual capacity in the matters involved in this case.

     20.  The bank paid attorney's fees to the Arriola Cowan & Arriola law firm in Guam for the defense of Probate Case No. 25-94.  The reasonable value of those services is $5,912.50.  Costs and expenses were incurred of which $2,599.27 is allowed.

     21.  In determining reasonable fees, these factors were considered:  The fair hourly rate in Chuuk is $110.00 per hour, cf. FSM MRPC R. 1.5(a)(3); Tolenoa v. Kosrae, 3 FSM Intrm. 167, 172 (App. 1987) (fair hourly rate in locality to be used); time devoted to travel is not included; and time records showing intra-office consultations and time of Mr. Arriola, Jr. which duplicated Ms. Arriola's were reduced.

     22.  The bank's expense to secure the presence of Karita Tenry at two hearings on Probate Case No. 25-94 was $1,524.20.  At the time of the hearings the bank had reassigned Ms. Tenry to its Pohnpei branch.  This expense is disallowed:  the bank only incurred the expense because it had reassigned her.  This expense was thus a consequence the bank could have avoided.1  It is also remote.

[9 FSM Intrm. 111]

     23.  To prosecute of the present case (1997-1057) the bank paid fees to both the Arriola law firm and Fredrick L. Ramp.  Reasonable fees for the work of the Arriola firm is $12,402.50.  Of this amount $11,237.50 is attributable to fees incurred in obtaining the permanent injunction of August 12, 1998.  No costs for the Arriola firm's services are allowed.

     Reasonable fees for Mr. Ramp's services are $17,820.00.  Of this amount $13,604.33 is attributable to services in obtaining the permanent injunction.  Costs allowed for these services is $4,215.67.  All these costs were attributable to services in obtaining the permanent injunction.

     Expenditures for photocopying, toll phone calls between lawyers, postage and courier services are disallowed.  Damarlane v. United States, 7 FSM Intrm. 468, 470 (Pon. 1995), aff'd, 8 FSM Intrm. 45 (App. 1997).  The extra expense of first class air travel is also disallowed.

     24.  As in determining the fees in Probate Case No. 25-94 I had the lawyers' time and charge invoices.  Ms. Arriola was the lead attorney throughout and briefed all the important issues.  Mr. Ramp made all appearances in the case in Chuuk.  Both thus had to be fully aware of all aspects of the case and master the legal issues presented.  This involved some duplication of effort.  I do not award fees when it duplicated another's work.  Thus time for work which was duplicated has been reduced.  In addition, no paralegal fees have been included, or travel time, or time Mr. Ramp spent in Guam because his plane overflew Chuuk.

     Based on these Findings, I make the following

Conclusions of Law
A.  Abuse of Process.
     The bank states correctly that one of this tort's elements is that the process be used for an improper, ulterior purpose.  It alleges that the purpose was to get $167,976.40 from the bank to pay Samuel Hartman, and that a part thereof would be paid by Hartman to Justice O'Sonis.  To obtain such funds was the avowed purpose of Probate Case No. 25-94.

     An ulterior purpose is one in which coercion is used to obtain a collateral advantage not properly involved in the proceeding.  "[T]he tort typically involves some form of extortion."  1 Am. Jur. 2d Abuse of Process 5 (1994).  "Some definite act . . . not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required."  W. Page Keeton et al., Prosser and Keeton on the Law of Torts 12.21, at 898 (5th ed. 1984).
 
     Samuel Hartman's case was incorrectly denominated a probate action (it is an action for accounting and for possession of specific funds), and the order and writ issued are manifestly improper, but the purpose ) to obtain funds ) was not collateral to the process used.  I conclude that the bank has failed to establish a necessary element of the tort, and judgment for the defendants on the fourth cause of action is appropriate. 2

B.  Judicial Immunity.
     The Trial Division of the Chuuk State Supreme Court is a court of general trial jurisdiction,

[9 FSM Intrm. 112]

including matters of probate, and all civil actions.  Chk. Const. art. VII, 3(b).  The court thus had subject matter jurisdiction of the petition in probate filed by Samuel Hartman which was the basis of Probate Case No. 25-94, over which Justice O'Sonis presided.

     "[A] judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function . . . ."  Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992).

A judge loses the cloak of judicial immunity in only two events:  "First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge's judicial capacity.  Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction."

Id. at 391 (quoting Mireless v. Waco, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9, 14 (1991) (citations omitted)).

     I conclude that neither event is present in this case.  As the plaintiff states in its trial brief, page 5, "Absolute immunity affords complete protection from a damage award to a public official as long as the challenged act falls within the scope of the activity for which the immunity is conferred."

     But the bank contends that the nature of Justice O'Sonis's acts are such that immunity should not be a cloak protecting him: he presided in spite of his disqualification; he knew that the same issue ) the '76 war claim ) had been raised in 1989, because he was the one who raised it; the case had been removed to the FSM Supreme Court; and the bank was not a party, so the court lacked personal jurisdiction.

     It is thus necessary to analyze whether Justice O'Sonis was performing judicial acts and whether his court had jurisdiction.  "[T]he factors determining whether an act by a judge is a 'judicial' one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity."  Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55 L. Ed. 2d 331, 342 (1978) (relied on by the Jano court).  I conclude that both factors are present and Justice O'Sonis was performing judicial acts.

     The second question in deciding whether immunity exists is whether the judge acted in "complete absence of all jurisdiction."  As stated above the court had subject matter jurisdiction of the misdenominated "probate" action.  I conclude that Justice O'Sonis did not act in complete absence of jurisdiction, although he did clearly act in excess of his jurisdiction.

     Therefore the nature of Justice O'Sonis's acts in Probate Case No. 25-94 are not such as to cause a loss of his immunity, as seen from the analysis above. Cases have dealt with similar impropriety and reached the same conclusion. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646, 651 (1872) ("[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.") quoted in Stump, 435 U.S. at 355-56, 98 S. Ct. at 1104, 55 L. Ed. 2d at 338-39; see also Stump, 435 U.S. at 359, 98 S. Ct. at 1106, 55 L. Ed. 2d at 341 ("A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.").  In Stump a teenage girl was sterilized pursuant to a court order when she had no notice of the proceeding.

     I conclude that Justice O'Sonis is immune from any claim for compensatory or punitive damages.

[9 FSM Intrm. 113]

C.  Attorney's Fees in Civil Rights Cases.
     The bank obtained a permanent injunction as a result of its action in which it successfully contended that the defendants had violated its civil rights.  The FSM civil rights statute in 11 F.S.M.C. 701(3) provides that "[i]n any action brought under this Section, the court may award costs and reasonable attorney's fees to the prevailing party."

     The bank is awarded costs and fees against Samuel Hartman.  Because of his position as judge, does judicial immunity protect Justice O'Sonis?

     There is no FSM authority concerning this issue.  In Tolenoa v. Kosrae, 3 FSM Intrm. 167 (App. 1987) which involved an award of attorney's fees in a civil rights case, the court, noting the similarity between the U.S. civil rights statute and our 11 F.S.M.C. 701, noted that "[w]e should consider the decisions of the United States (the only foreign jurisdiction cited) in arriving at a decision, without being bound by them."  Tolenoa, 3 FSM Intrm. at 170.  U.S. authority is therefore considered in resolving this issue of Justice O'Sonis's liability for attorney's fees.

     In Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984), the U.S. Supreme Court held that judicial immunity did not apply against the imposition of prospective injunctive relief, since the court found no common law precedent that granted such immunity.  The Pulliam court also held that Congress had made no indication that the right to attorney's fees should not apply when prospective relief was granted against a judge pursuant to the civil rights statute.  This statute, 42 U.S.C. 1988, provided that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."3  The state magistrate in Pulliam appealed the award of $7,038.00 in attorney's fees.  The remaining award of $653.90 in other costs was not contested.

     I find that the Pulliam interpretation suitable for application in the FSM.  I therefore conclude that Justice O'Sonis is liable to the bank for reasonable attorney's fees and costs for bringing this action which resulted in permanent prospective injunctive relief.

D.  Damages for the Defense against Probate Case No. 25-94.
     Justice O'Sonis is immune from suit and from the imposition of damages, either compensatory or punitive, for the bank's defense in the probate case.  Samuel Hartman is liable for damages, which are the fees and costs incurred by the bank in Probate Case No. 25-94.

E.  Punitive Damages.
     Because he acted with malice, the bank is entitled to punitive damages against Samuel Hartman.  Since the evidence revealed that he has no net worth and considering the substantial damage, fee and cost award, only a nominal award is proper.  As discussed, judicial immunity protects from liability for punitive damages.

[9 FSM Intrm. 114]

Conclusion
     The Bank of Guam is entitled to damages on Counts I, II and IV against Samuel Hartman in the amount of $8,511.77, which is the total of the bank's reasonable attorney fees and its costs for defending Probate Case No. 25-94.

     The Bank of Guam is entitled to its attorneys' fees and costs against Samuel Hartman for the prosecution of Counts I, II, IV and V of this case in the amount of $34,438.17.

     The Bank of Guam is entitled to its reasonable attorney's fees in the amount of $24,921.83 and $4,215.67 in costs against Justice O'Sonis and Samuel Hartman expended by the bank in this case in obtaining the permanent injunction.  Justice O'Sonis and Samuel Hartman are jointly and severally liable for this amount, which is included in the $34,438.17 awarded against Samuel Hartman above.

     No compensatory or punitive damages are awarded against Justice O'Sonis.

     The Bank of Guam is entitled to punitive damages against Samuel Hartman in the amount of $1.00.

     The clerk shall return to the bank the security, together with accrued interest, posted by the bank upon the issuance of the preliminary injunction.
 
 
Footnotes:
 
1.  See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts 3.7 (5th ed. 1984) (avoidable consequences rule)

2.  If the bank had prevailed on this count it would not have obtained any greater recovery than that awarded below for the counts it did prevail on.

3.  As amended, section 1988 now has a proviso following this passage which reads, "except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction."  This new proviso does not alter Pulliam's guidance in this case.
 
                                                                                                                                                                                                                                                                                                           
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