FSM 10 Intrm. 098-099

FSM SUPREME COURT TRIAL DIVISION

Cite as FSM Dev. Bank v. Director of Commerce & Indus.

10 FSM Intrm. 317 (Kos. 2001)

[10 FSM Intrm. 317]

FSM DEVELOPMENT BANK,

Petitioner,

vs.

DIRECTOR, KOSRAE STATE DEPARTMENT

OF COMMERCE AND INDUSTRY,

Respondent.

CIVIL ACTION NO. 2001-2002

ORDER AND MEMORANDUM

Martin Yinug

Associate Justice

Decided: July 16, 2001

APPEARANCE:

For the Petitioner: James Woodruff, Esq.

Legal Counsel

P.O. Box M

Kolonia, Pohnpei FM 96941

[10 FSM Intrm. 318]

For the Respondent: April Dawn M. Skilling, Esq.

Assistant Attorney General

Office of the Kosrae Attorney General

P.O. Box 870

Tofol, Kosrae FM 96944

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HEADNOTES

Mandamus and Prohibition

A writ of mandamus is an extraordinary remedy the purpose of which is to cause a public official to carry out his or her clear, nondiscretionary duty. FSM Dev. Bank v. Director of Commerce & Indus., 10 FSM Intrm. 317, 319 (Kos. 2001).

Mandamus and Prohibition

Given the nature of the remedy of mandamus, and the caution exercised in affording it, it is important that the right sought to be enforced be clear and certain. There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy. FSM Dev. Bank v. Director of Commerce & Indus., 10 FSM Intrm. 317, 319 (Kos. 2001).

Mandamus and Prohibition

When a petition for mandamus to order the respondent to sell land does not identify the property, the right which the writ seeks to enforce is not sufficiently specific, well defined, and complete to justify the extraordinary remedy of mandamus. FSM Dev. Bank v. Director of Commerce & Indus., 10 FSM Intrm. 317, 319 (Kos. 2001).

Mandamus and Prohibition ; Property ) Mortgages

Mandamus lies to compel a public official to perform a clear, nondiscretionary duty. When the petition is devoid of any allegation that the respondent is acting in an official capacity, when the Kosrae deed of trust statute does not confer on the respondent either the obligation or the express power to act as a trustee under a deed of trust, and when the petition is silent as to any other mechanism or source of authority by which the respondent in his official capacity has assumed the duties of the trustee under the deed of trust at issue so as to make the performance of those duties a "clear and nondiscretionary," mandamus is not available. FSM Dev. Bank v. Director of Commerce & Indus., 10 FSM Intrm. 317, 319 (Kos. 2001).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

On May 22, 2001, the FSM Development Bank ("the Bank") has filed a petition for writ of mandamus. On June 11, 2001, the respondent Director of the Kosrae State Department of Commerce and Industry ("the Director"), filed his response. Also filed simultaneously with the Director's response was the pro haec vice motion of Kosrae Assistant Attorney April Skilling, who seeks to appear on behalf of the Respondent.

The pro hac vice motion is granted. For the reasons that follow, the petition for writ of

[10 FSM Intrm. 319]

mandamus is denied.

The Bank seeks an order requiring the Director to sell land in which the Bank claims an interest under a deed of trust. The Director is the trustee under the deed of trust. According to the allegations in the petition, the property which is the subject of the deed of trust secures a loan from the Bank to Donald Jonah and Dorinta Donald, who are apparently in default on their loan payments. In his response the Director questions that an interest in land is involved. The Director also contends that the petition is premature absent a declaratory judgment deciding competing claims as to ownership of a house presently located on the property subject to the deed of trust. Alternatively, the Director seeks denial of the petition on the basis that it does not adequately specify the property to be sold.

Setting aside the jurisdictional question raised by the Director, the court notes that a writ of mandamus is an extraordinary remedy the purpose of which is to cause a public official to carry out his or her clear, nondiscretionary duty. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994). Given the nature of the remedy, and the caution exercised in affording it, it is "important that the right sought to be enforced be clear and certain. There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy." 52 Am. Jur. 2d Mandamus § 64 (1970). The petition does not identify the property that is the subject of the deed of trust. In the absence of specific identification, the right which the writ seeks to enforce is not sufficiently "specific, well defined, and complete," id., to justify the extraordinary remedy of mandamus.

Moreover, mandamus lies to compel a public official to perform a clear, nondiscretionary duty. Senda, 6 FSM Intrm. at 338. The petition is devoid of any allegation that the Director, as trustee under the deed of trust, is acting in his official capacity. It merely recites that "Respondent [the Director] is the duly authorized and acting trustee under deeds of trust in Kosrae, including those held by Petitioner." Petition for Writ of Mandamus ¶ 4 (May 22, 2001). The Kosrae deed of trust statute, Kos. S.C. §§ 11.401 et seq., does not confer on the office of the Director either the obligation or the express power to act as a trustee under a deed of trust. The petition is silent as to any other mechanism or source of authority by which the Director in his official capacity has assumed the duties of the trustee under the deed of trust at issue so as to make the performance of those duties a "clear and nondiscretionary," Senda, 6 FSM Intrm. at 338, function of the Director. In the absence of such a showing, mandamus is not available.

Accordingly, the petition for writ of mandamus is denied.

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