Cite as Etscheit v. Adams,
4 FSM Intrm. 242 (Pohnpei S. Ct. App. 1990)

[4 FSM Intrm. 242]








May 1, 1990

     Hon. Carl Kohler, Associate Justice, Pohnpei Supreme Court;
     Hon. Yoster Carl, Associate Justice, Pohnpei Supreme Court; and
     Hon. Judah C. Johnny, Associate Justice, Pohnpei Supreme Court

For the Petitioner/Defendant:     Daniel J. Berman, Esq.
                                                       Berman and Berman
                                                       P.O. Box 1491
                                                       Kolonia, Pohnpei  FM 96941

For the Respondents
Adams and Varner:
                                                       Fredrick L. Ramp, Esq.
                                                       P.O. Box 1480
                                                       Kolonia, Pohnpei  FM 96941                                      
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                                                       Martin F. Mix, Esq.
                                                       P.O. Box 143
                                                       Kolonia, Pohnpei  FM 96941

Civil Procedure
     A motion to the state appellate division to stay state trial court proceedings pending appellate court issuance of a promised detailed written opinion explaining appellate denial of an earlier petition for writ of mandamus against the trial judge is denied where: (1) there was no presently scheduled proceeding to take place at the trial level although the trial judge had instructed the parties to be prepared to proceed if the writ was denied; (2) an appellate opinion is to be written informing the parties of the reasons for dismissal of the petition for writ of mandamus; (3) the constitutional issues of first impression were resolved in the denial of the writ; (4) a matter that has been ruled upon and completed such that no other action is required except for the issuance of an opinion will not support a motion to stay on the appellate level; and (5) no motion to stay had been requested of the trial court.  Etscheit v. Adams, 4 FSM Intrm. 242, 244 (Pon. S. Ct. App. 1990).
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     Petitioner/Defendant Robert Etscheit Jr. filed a motion with this court which came on to be heard on oral argument on April 24, 1990.  The petitioner argued through counsel.  Respondents Adams and Varner argued through counsel Mix. Counsel Ramp had filed a written opposition to stay.

     In summary, the petitioner/defendant moves this court to stay the trial proceedings in Pohnpei Civil Action No. 343, until the Appellate Division of the Pohnpei Supreme Court renders a full written opinion in this appeal.
     A brief statement of the background of this appeal and PCA No. 343 will aid understanding the motion before us.  PCA No. 343 is a dispute between Adams and Varner as plaintiffs and petitioner Etscheit as defendant.  PCA 343 is currently pending in the court below.  Chief Justice Edwel H. Santos in the exercise of his administrative function, assigned PCA No. 343 to himself for trial and decision.  Defendant Etscheit on two motions, sought Justice Santos to disqualify as trial judge, on various grounds.  Justice Santos denied the motions. Following denial by the trial judge, the petitioner filed Civil Appeal No. 4-90 by petition for a writ of mandamus.  This court heard argument on the petition for writ, and on October 31, 1989, without detailed written opinion denied the petition with note that written opinion will follow.  Ordinarily therefore, PCA No. 343 remains pending before Chief Justice Santos.

     The petitioner/defendant now by the motion at hand seeks an order of this Court to stay further proceedings before Justice Santos in the lower

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court until this court will render its written opinion supporting its denial of the issuance of a writ of mandamus.

     Petitioner supports his motion for stay with an affidavit as will be discussed following.  The motion must be denied for the reasons set forth therewith.

     1.  As to petitioner's affidavit that on March 30, 1990, the parties to PCA No. 343 were ordered by Chief Justice Santos to prepare to proceed on issues in PCA No. 343, made in a hearing in Pohnpei Civil Action No. 41-90, a separate matter but of the same parties, this Court has reviewed the trial record of PCA 343, and finds no official notice setting forth proceedings in that matter.  Counsel for the petitioner additionally on inquiry at this hearing admits that no valid written schedule or order has been established by the trial court for further proceedings in PCA 343.  It was also admitted by counsel that the statement was made by Justice Santos in a hearing in PCA 41-90, when the question was discussed in regards to the relationship of causes of action in PCA 343 and PCA 41-90; that it was considered that if the decision in PCA 41-90 which is in active trial is rendered in favor of the petitioner here, then causes in PCA 343 would be rendered moot.  It was then that Justice Santos apparently instructed counsel to prepare to proceed on issues in PCA 343 if petitioner does not prevail in PCA 41-90.  But no proceedings have been affirmatively set.  It follows therefore that if no proceedings have been set by the Court in PCA 343, there is nothing to stay.

     2.  As to petitioner's affidavit that Chief Justice Santos informed parties on March 30, 1990 that no further memoranda or opinion would be forthcoming from this Court, whatever the Justice may have stated in the Court below does not alter the decision of this Court in its ruling of October 31, 1989.  A written opinion in this appeal will be issued as ruled earlier.

     3.  As to petitioner's affidavit that a stay would preserve a review of constitutional issues of first impression, all constitutional issues raised by the petitioner in his petition for writ have been considered and finally resolved by the order of October 31, 1989.  There is nothing left before us.

     4.  While not raised by argument, a motion for stay is proper in this Court only on appeal, new trial, and enforcement of judgment.  As here, Appeal No. 4-89 has been finally disposed of and is no longer before this Court.  Rule 55, Rules of Civil Procedure.  There is nothing left to rule on, other than the opinion which will simply explain the reasons of the ruling of this court rendered on October 31, 1989.

     The petitioner has not moved the trial court for a stay.  Yet motion of this sort properly belongs to the trial court.

     On a final note, if a judgment in PCA No. 41-90 may be dispositive of the issues in PCA 343 - that is, if petitioner prevails, what benefit will be gained in ordering a stay in PCA 343 when PCA 41-90 is allowed to proceed actively, since Justice Santos apparently made the fearful statement,

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contingent upon the disposition of PCA 41-90?

     For the reasons stated, we order the motion to stay denied.
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