CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as Albert v. O'Sonis, 15 FSM Intrm. 226 (Chk. S. Ct. App. 2007)
MAYOR FRANK ALBERT, in his official capacity as
the Mayor of Piisemwar and in his individual
capacity, and PIISEMWAR MUNICIPALITY,
Petitioners,
vs.
ASSOCIATE JUSTICE MACHIME O'SONIS,
Respondent,
RENIS MEINGIN and SARAH MEINGIN,
Real Parties in Interest-Respondents.
CIVIL APPEAL CASE NO. 07-2007
OPINION AND ORDER GRANTING WRIT OF PROHIBITION AND
AN ORDER TO RETURN PROPERTY
Argued: September 3, 2007
Decided: September 5, 2007
BEFORE:
Hon. Midasy O. Aisek, Associate Justice, Presiding
Hon. Ready E. Johnny, Temporary Justice*
Hon. Derensio Konman, Temporary Justice**
*Associate Justice, FSM Supreme Court, Weno, Chuuk
**Attorney at Law, Weno, Chuuk
APPEARANCE:
For the Petitioners: Charleston L. Bravo
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
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When defense counsel files an answer for all defendants and then "withdraws" from representing one of the defendants because that defendant had never consulted with or consented to defense counsel's representation, the better view is that defense counsel had never represented that defendant. Albert v. O'Sonis, 15 FSM Intrm. 226, 230 & n.1 (Chk. S. Ct. App. 2007).
A "Complaint for Summary Judgment" cannot be considered to be a summary judgment motion since a summary judgment motion cannot be made until after the expiration of 20 days from the commencement of the action, and an action is commenced by the filing of a complaint. Albert v. O'Sonis, 15 FSM Intrm. 226, 230 n.2 (Chk. S. Ct. App. 2007).
There is no such pleading as a "complaint for summary judgment." A pleading thus entitled is therefore a complaint, since a filing is what it is regardless of what the party who filed it chooses to call it. Albert v. O'Sonis, 15 FSM Intrm. 226, 230 n.2 (Chk. S. Ct. App. 2007).
The single issue presented by a petition for a writ of prohibition is whether or not an inferior court or tribunal is without jurisdiction or is about to act in excess of its jurisdiction. The general requirements for the issuance of an extraordinary writ of prohibition are that a court or an officer is about to exercise judicial or quasi-judicial power and that the exercise of such power is unauthorized or the inferior tribunal is about to act without or in excess of jurisdiction which may or will result in damage or injury for which there is no plain, speedy or adequate legal remedy. Albert v. O'Sonis, 15 FSM Intrm. 226, 231 (Chk. S. Ct. App. 2007).
A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. Such a writ may only prevent a clear abuse of power and cannot be used to test or overrule a judge's exercise of discretion. 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 the issuance of a writ of prohibition. The issuance of writs is discretionary and must be used with great caution. Albert v. O'Sonis, 15 FSM Intrm. 226, 231 (Chk. S. Ct. App. 2007).
A court that has the power to issue writs of prohibition may only do so if the petitioner has met its burden to show that its right to the writ is clear and indisputable. Albert v. O'Sonis, 15 FSM Intrm. 226, 232 (Chk. S. Ct. App. 2007).
When certain issues raised are merely allegations of gross legal error which may be properly addressed by an appeal (and are already the subject of an appeal) and since a writ of prohibition can only be issued to confine a lower tribunal to its proper jurisdiction and is not a substitute for an appeal, those issues are not the proper subject for a petition for a writ of prohibition. A writ of prohibition will not lie to correct those alleged legal errors no matter how gross the error or how meritorious the petitioners' legal arguments. Albert v. O'Sonis, 15 FSM Intrm. 226, 232 (Chk. S. Ct. App. 2007).
Section 4 of the Chuuk Judiciary Act of 1990 denies courts the power of attachment, execution and garnishment of public property. Thus, a court may issue an order in aid of judgment addressed to a governmental body, but is barred from issuing any order in aid of judgment that acts as an attachment, execution and garnishment of public property. Albert v. O'Sonis, 15 FSM Intrm. 226, 232 (Chk. S. Ct. App. 2007).
Since an order in aid of judgment to seize municipally-owned vehicles acted as an execution on public property, it is clearly and indisputably an attempt to exercise power in excess of the court's jurisdiction, that is, it is a power specifically denied to courts by the Chuuk Judiciary Act. Since the trial court justice had no discretion in the matter – he had no power to order the vehicles' seizure and since the petitioners have no plain, speedy or adequate legal remedy for this judicial act in excess of the court's jurisdiction and writ of prohibition will issue. Albert v. O'Sonis, 15 FSM Intrm. 226, 232 (Chk. S. Ct. App. 2007).
Courts frequently, in addition to prohibiting a specified action, impose affirmative directions or commands found essential to adequate relief. When the lower tribunal is completely without jurisdiction to act, the court has the authority to not only prevent the lower tribunal's excesses but to also correct the results thereof. Albert v. O'Sonis, 15 FSM Intrm. 226, 232 (Chk. S. Ct. App. 2007).
When issuance of a writ of prohibition without a further affirmative command to return the unlawfully seized property to the registered owner would not constitute adequate relief, and would leave the petitioner without any plain, speedy or adequate legal remedy and since the trial court was completely without jurisdiction to issue an order in aid of judgment executing on public property, to correct the results of that excess, the appellate court must order the return of the seized property. Albert v. O'Sonis, 15 FSM Intrm. 226, 233 (Chk. S. Ct. App. 2007).
When a trial justice makes no rulings on the motion to stay before him, he fails to exercise whatever discretion he may have had to rule on it because a court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time and since the trial judge neglected his duties by ignoring the motion to stay and further abused his discretion by failing to rule on it before issuing an order in aid of judgment, the appellate court issuing a writ of prohibition barring the order in aid of judgment will stay any enforcement of the judgment until the appeal of the judgment has been decided. Albert v. O'Sonis, 15 FSM Intrm. 226, 233 (Chk. S. Ct. App. 2007).
The procedure for a judgment creditor to obtain an order in aid of judgment and the authority for a court to issue one is contained in section 55 of Title 8 of the Trust Territory Code, which is still applicable law in Chuuk. Albert v. O’Sonis, 15 FSM Intrm. 226, 233 (Chk. S. Ct. App. 2007).
The statute requires that an order in aid of judgment hearing can only be held after an application for an order in aid of judgment and notice of that application has been given to the opposing party. Since an application for an order in aid of judgment must be made an adequate time for notice before the motion hearing, it must be made in writing. The Civil Rules provide that adequate time for service of the notice is not later than 5 days before the time specified for the hearing. Therefore, in order to obtain an order in aid of judgment, a party must serve a written motion on the opposing party at least
five days before the specified hearing date. Albert v. O'Sonis, 15 FSM Intrm. 226, 233 (Chk. S. Ct. App. 2007).
The trial court cannot issue an order in aid of judgment without first making a finding about the debtor's ability to pay. In the case of a governmental debtor, this finding must include the debtor's legal ability to pay (e.g., whether money has been appropriated that can legally be applied to that debt). Albert v. O'Sonis, 15 FSM Intrm. 226, 233 (Chk. S. Ct. App. 2007).
Any order in aid of judgment may be modified by the court as justice may require, at any time, upon application of either party and notice to the other, or on the court's own motion. But a court cannot decide its own motion without first giving either party notice or an opportunity to be heard because that would violate a litigant's due process rights guaranteed by both the Chuuk and FSM Constitutions since notice and an opportunity to be heard is the essence of due process. Albert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007).
When a court makes a motion sua sponte, it must give the parties notice and an opportunity to respond before it decides; just as when a party makes a motion, the other party generally must be given an opportunity to respond before the court rules. Albert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007).
A trial judge's calculated and repeated disregard of governing rules of orders in aid of judgment would also support the issuance of a writ of prohibition that the trial judge issue no further orders in aid of judgment without complying with the statute and without first ruling on the pending motion to stay. Albert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007).
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MIDASY O. AISEK, Associate Justice:
Petitioners Mayor Frank Albert and Piisemwar Municipality filed this original action in the appellate division on August 21, 2007. It seeks the issuance of an extraordinary writ of prohibition directed to the respondent justice sitting in the trial division. The petition alleges that the respondent justice has exceeded his authority in trial division Civil Action No. 60-2006, Meingin v. Albert, by enforcing, through an invalid order in aid of judgment, a judgment which, in the petitioners' view, is void.
On August 24, 2007, the court issued an order that directed an answer to the petition, deemed the petition to be the petitioner's opening brief, and set a schedule for further proceedings. Neither the respondent trial justice nor the real parties in interest filed an answer or response. Oral argument was heard from the petitioners on September 3, 2007. Respondent-real party in interest Renis Meingin was present. His counsel in the trial division appeared and announced that he was not counsel of record because he had not been retained for, and was not appearing in, this appellate proceeding. Although we take no position on counsel's assertion that he should not be considered counsel of record, we note that even if counsel had appeared for the real parties in interest to offer argument, we would not have
had to hear it. Chk. App. R. 31(c).
After carefully considering the filings, the arguments, and the files' contents, we grant the petition and issue herewith the writ of prohibition directed to Associate Justice Machime O’Sonis. Our reasoning follows.
On April 17, 2006, Renis Meingin and Sarah Meingin filed suit (styled as a "Complaint for Summary Judgment and Breach of Contract") against Piisemwar Municipality, its current mayor, Frank Albert, and its former mayor, Sichiro Silander, for $25,000 in unpaid rent (out of $30,000) due Sarah Meingin under a Lease Agreement. Defense counsel filed an answer and later "withdrew" from representing the former mayor since counsel had never consulted with him.1
On August 31, 2006, the trial court granted the Meingins summary judgment against Piisemwar Municipality and Frank Albert in the amount of $65,000 plus 9% per annum. No motion for summary judgment had been filed.2 On September 6, 2006, Piisemwar Municipality and Frank Albert moved for relief from judgment under Civil Rule 60(b).
On March 9, 2007, the trial judge issued an order denying the Rule 60(b) motion and an order in aid of judgment ordering that Piisemwar Municipality and Frank Albert pay the $75,0003 judgment principal by March 10, 2007. No motion for an order in aid of judgment had been filed; nor had one been made during a February 12, 2007 hearing.
On March 19, 2007, Piisemwar Municipality and Frank Albert filed a notice of appeal from the denial. The appeal was docketed as Civil Appeal No. 12-2007 (and later re-docketed as Civil Appeal No. 03-2007.) On March 22, 2007, Piisemwar and Albert filed a motion to stay the judgment. This motion was never ruled upon.
The March 9, 2007 order in aid of judgment was altered by an August 9, 2007 order in aid of judgment that ordered the Department of Public Safety to seize all vehicles registered to Piisemwar Municipality and then immediately turn them over to the judgment-creditors, Renis Meingin and Sarah Meingin. After the state police seized several vehicles and turned them over to the Meingins, new counsel then appeared for Piisemwar and Albert and filed this petition for a writ of prohibition.
The petition presented the following issues for our review:
1) whether the August 31, 2006 order granting summary judgment was invalid because it was not "filed";
2) whether the August 31, 2006 order granting summary judgment was invalid because no written motion for summary judgment had ever been filed;
3) whether the August 31, 2006 order granting summary judgment was invalid because under Civil Rule 56 and settled jurisprudence;
4) whether the March 1, 2007 order in aid of judgment was invalid
(a) because no motion for an order in aid of judgment had been filed, and
(b) because it emanated from a void summary judgment;
5) whether March 1, 2007 order denying Civil Rule 60(b) relief from judgment was invalid under that rule and settled jurisprudence;
6) whether the August 9, 2007 order in aid of judgment was invalid since
(a) no motion for an order in aid of judgment was filed, and
(b) it emanated from a void summary judgment; and
7) whether the respondent justice's inaction to conduct a hearing and to grant or deny an unopposed motion to stay was unlawful and not in accordance with the Civil Procedure Rules.
At oral argument, the petitioners further contended that the August 9, 2007 order in aid of judgment was in excess of the trial court's powers because it violated section 4 of the Judiciary Act.
The single issue presented by a petition for a writ of prohibition is whether or not an inferior court or tribunal is without jurisdiction or is about to act in excess of its jurisdiction. Election Comm'r v. Petewon, 6 FSM Intrm. 491, 496, 1 CSR 5, 9 (Chk. S. Ct. App. 1994). The general requirements for the issuance of an extraordinary writ of prohibition are that a court or an officer is about to exercise judicial or quasi-judicial power and that the exercise of such power is unauthorized or the inferior tribunal is about to act without or in excess of jurisdiction which may or will result in damage or injury for which there is no plain, speedy or adequate legal remedy. Nikichiw v. O'Sonis, 13 FSM Intrm. 132, 138 (Chk. S. Ct. App. 2005); Election Comm'r, 6 FSM Intrm. at 497, 1 CSR at 9.
A writ of prohibition is an extraordinary remedy, the object of which is not to cure a mere legal error or to serve as a substitute for appeal. Such a writ may only prevent a clear abuse of power and cannot be used to test or overrule a judge’s exercise of discretion. 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 the issuance of a writ of prohibition. The issuance of writs is discretionary and must be used with great caution. Etscheit v. Amaraich, 14 FSM Intrm. 597, 600
(App. 2007).
A court that has the power to issue writs of prohibition may only do so if the petitioner has met its burden to show that its right to the writ is clear and indisputable. Nikichiw v. Petewon, 15 FSM Intrm. 33, 37 (Chk. S. Ct. App. 2007).
Issues numbered above as 1-3 and 5 are merely allegations of gross legal error which may be properly addressed by an appeal (and are already the subject of an appeal, CSSC Civ. App. No. 12-2007 [renumbered as 03-2007]). Since a writ of prohibition can only be issued to confine a lower tribunal to its proper jurisdiction and is not a substitute for an appeal, issues 1, 2, 3, 4b, 5, and 6b are not the proper subject for this petition and a writ of prohibition will not lie to correct those alleged legal errors no matter how gross the error or how meritorious the petitioners' legal arguments. We therefore decline to further consider those issues in this proceeding.
A. August 9, 2007 Order in Aid of Judgment
The August 9, 2007 order in aid of judgment acted as an execution on public property because it ordered public property (municipal vehicles) to be seized and given to judgment-creditors. Section 4 of the Chuuk Judiciary Act of 1990, Chk. S.L. No. 190-08, § 4, denies courts the power of attachment, execution and garnishment of public property. Thus, a court may issue an order in aid of judgment addressed to a governmental body, but is barred from issuing any order in aid of judgment that acts as an attachment, execution and garnishment of public property. Kama v. Chuuk, 10 FSM Intrm. 593, 600 (Chk. S. Ct. App. 2002).
Since the August 9, 2007 order in aid of judgment acted as an execution on public property, it is clearly and indisputably an attempt to exercise power in excess of the court's jurisdiction, that is, it is a power specifically denied to courts by the Chuuk Judiciary Act. The trial court justice had no discretion in the matter – he had no power to order the vehicles' seizure. Furthermore, the petitioners have no plain, speedy or adequate legal remedy for this judicial act in excess of the court's jurisdiction. The Meingins may, at any time, transfer the vehicles obtained through the unlawful August 9, 2007 order in aid of judgment to a bona fide purchaser for value without notice and thus thwart Piisemwar Municipality's ability to regain possession of its vehicles and any proceeds from such a transfer may be quickly dissipated.
We will therefore issue a writ of prohibition to bar the enforcement of the August 9, 2007 order in aid of judgment and any other order the trial court has issued or may issue executing on Piisemwar Municipality public property, including, but not limited to, vehicles registered to the municipality. For the reasons given below, we will also order that any property seized pursuant to the August 9, 2007 order be returned to Piisemwar Municipality forthwith.
B. Order Returning Seized Vehicles
The petitioners also ask that, if we prohibit or void the August 9, 2007 order in aid of judgment, we also order that the vehicles already seized pursuant to that order in aid of judgment be returned. "[C]ourts frequently, in addition to prohibiting a specified action, impose affirmative directions or commands found essential to adequate relief." 63A Am. Jur. 2d Prohibition – 88, at 220 (1984). When the lower tribunal is completely without jurisdiction to act, the court has the authority to not only prevent the lower tribunal's excesses but to also correct the results thereof. State ex rel. LTV Steel Co. v. Gwin, 594 N.E.2d 616, 619 (Ohio 1992).
A writ of prohibition without a further affirmative command to return the unlawfully seized property to the registered owner, Piisemwar Municipality, would not constitute adequate relief. It would, for the reasons stated above, leave Piisemwar Municipality without any plain, speedy or adequate legal remedy. The trial court was completely without jurisdiction to issue an order in aid of judgment executing on Piisemwar public property and to correct the results of that excess, we must order the return of the seized property.
C. Motion to Stay
The motion to stay, filed March 22, 2007, was never ruled upon by the trial court. When a trial justice makes no rulings on motions before him, he fails to exercise whatever discretion he may have had to rule on them because a court abuses its discretion by an unexplained failure to exercise its discretion within a reasonable time. Ruben v. Hartman, 15 FSM Intrm. 100, 109 (Chk. S. Ct. App. 2007). Since the trial judge neglected his duties by ignoring the motion to stay and further abused his discretion by failing to rule on it before issuing the August 9, 2007 order in aid of judgment, we will stay any enforcement of the August 31, 2006 summary judgment until the March 19, 2007 appeal has been decided.
D. Orders in Aid of Judgment Generally
Since it was the issuance of the August 9, 2007 order in aid of judgment that precipitated this petition for an extraordinary writ of prohibition, instead of letting the already-filed appeal take its course, we feel that some comment on the required procedure for orders in aid of judgment is appropriate and would be instructive to both the bar and the bench.
The procedure for issuing an order in aid of judgment is governed by statute. "The procedure for a judgment creditor to obtain an order in aid of judgment and the authority for a court to issue one is contained in section 55 of Title 8 of the Trust Territory Code, which . . . is still applicable law in Chuuk." Kama, 10 FSM Intrm. at 600. Section 55 provides in relevant part:
At any time after a finding for the payment of money by one party to another and before any judgment based thereon has been satisfied in full, either party may apply to the court for an order in aid of judgment. Thereupon the court, after notice to the opposite party, shall hold a hearing on the question of the debtor's ability to pay and determine the fastest manner in which the debtor can reasonably pay a judgment based on the finding. . . .
8 TTC 55. The statute thus requires that an order in aid of judgment hearing can only be held after an application for an order in aid of judgment and notice of that application has been given to the opposing party. Since an application for an order in aid of judgment must be made an adequate time for notice before the hearing on the motion, 8 TTC 55, it must be made in writing, Chk. Civ. R. 7(b)(1). The Civil Rules provide that adequate time for service of the notice is "not later than 5 days before the time specified for the hearing." Chk. Civ. R. 6(d). Therefore, in order to obtain an order in aid of judgment, a party must serve a written motion on the opposing party at least five days before the specified hearing date.
There were no prior motions made for either the March 6, 2007 or the August 9, 2007 order in aid of judgment. Moreover, the trial court cannot issue an order in aid of judgment without first making a finding about the debtor's ability to pay. In the case of a governmental debtor, this finding must include the debtor's legal ability to pay (e.g., whether money has been appropriated that can legally be applied to that debt). Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).
The August 9, 2007 order in aid of judgment modified the previous March 6, 2007 order in aid of judgment. "Any order in aid of judgment . . . may be modified by the court as justice may require, at any time, upon application of either party and notice to the other, or on the court's own motion." 8 TTC 57.
But a court cannot decide its own motion without first giving either party notice or an opportunity to be heard because that would violate a litigant’s due process rights guaranteed by both the Chuuk, Chk. Const. art. III, § 2, and FSM Constitutions, FSM Const. art. IV, § 3, since notice and an opportunity to be heard is the essence of due process. Kama, 10 FSM Intrm. at 598. Thus, when a court makes a motion sua sponte, it must give the parties notice and an opportunity to respond before it decides; just as when a party makes a motion, the other party generally must be given an opportunity to respond before the court rules. Wainit v. Weno, 10 FSM Intrm. 601, 606 (Chk. S. Ct. App. 2002). Therefore, even if the August 9, 2007 order is considered to be the result of the judge's own motion, it was still improper.
Accordingly, the trial judge's calculated and repeated disregard of governing rules of orders in aid of judgment also supports the issuance of a writ of prohibition that the trial judge issue no further orders in aid of judgment in Civil Action No. 60-2006 without complying with the statute and without first ruling on the pending motion to stay.
We will therefore issue, contemporaneously with this opinion, a writ of prohibition barring the enforcement of the August 9, 2007 order in aid of judgment and any other order the trial court has issued or may issue executing on Piisemwar Municipality public property, including, but not limited to, vehicles registered to the municipality and further bar the enforcement of any judgment in Civil Action No. 60-2006 until the appeal docketed in that case has been decided and become final.
AND WE HEREBY FURTHER ORDER that any and all property seized pursuant to the August 9, 2007 order be returned to Piisemwar Municipality forthwith. If the respondent-real parties in interest, Renis Meingin and Sarah Meingin, do not voluntarily comply with this order, the Department of Public Safety shall seize and return to the possession of Piisemwar Municipality all vehicles it seized earlier pursuant to the August 9, 2007 order in aid of judgment in Civil Action No. 60-2006. We will issue a separate order to that effect.
_____________________________________Footnotes:
1We think the better view is that defense counsel had never represented the former mayor because that defendant had never consulted with or consented to defense counsel's representation.
2The "Complaint for Summary Judgment" cannot be considered to be a summary judgment motion since a summary judgment motion cannot be made until "after the expiration of 20 days from the commencement of the action," Chk. Civ. R. 56(a), and an action is commenced by the filing of a complaint, Chk. Civ. R. 3. There is no such pleading as a "complaint for summary judgment." The April 17, 2006 pleading is therefore a "complaint," Chk. Civ. R. 7(a), since a filing is what it is regardless of what the party who filed it chooses to call it, Ruben v. Petewon, 14 FSM Intrm. 177, 185 (Chk. S. Ct. App. 2006).
3 Where the extra $10,000 (above the August 31, 2006 judgment's $65,000 figure) came from is unexplained. Nine percent interest would not amount to half that and would not be a round figure.
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