FSM SUPREME COURT APPELLATE DIVISION
Cite as FSM Dev. Bank v. Yinug
11 FSM Intrm. 405 (App. 2003)
 
[11 FSM Intrm. 405]
 
FSM DEVELOPMENT BANK,
Petitioner,
 
vs.
 
HONORABLE MARTIN YINUG,
Respondent,
 
YVETTE ETSCHEIT ADAMS d/b/a POHNPEI ACE
HARDWARE, ADAMS BROTHERS CORPORATION,
ISLAND HOMES CONSTRUCTION, INC., and
PAULUS PERMAN,
Real Parties in Interest/Respondents.
 
APPEAL CASE NO. P5-2002
 
OPINION
 
Argued: January 22, 2003
 
Decided: March 7, 2003
 
BEFORE:
 
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court*
 
[11 FSM Intrm. 406]
 
*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
 
APPEARANCES:
 
For the Petitioner:                          James Woodruff, Esq.
                                                        Legal Counsel, FSM Development Bank
                                                        P.O. Box M
                                                        Kolonia, Pohnpei FM 96941
 
For the Respondents:                   Craig D. Reffner, Esq.
(Adams & Adams Bros. Corp.)     Law Office of Frederick L. Ramp
                                                        P.O. Box 1480
                                                        Kolonia, Pohnpei FM 96941
 
For the Respondent:                    Salomon Saimon, Esq.
(Island Homes Constr.)                Law Offices of Saimon & Associates
                                                       P.O. Box 1450
                                                       Kolonia, Pohnpei FM 96941
 
For the Respondent:                    Matt Mix, Esq.
(Perman)                                       P.O. Box 143
                                                       Kolonia, Pohnpei FM 96941

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HEADNOTES

Mandamus and Prohibition
     When an amended petition for writ of mandamus is filed, the petitioner will be limited to briefing the issues raised in its original petition for writ of mandamus, not the issues raised in its amended petition, and the amended petition will be designated as a case with a different docket number. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 409 (App. 2003).
 
Mandamus and Prohibition
     The writ of mandamus is an extraordinary remedy, the object of which is not to cure a legal error or to serve as a substitute for appeal, but to require an official to carry out a clear non-discretionary duty. A writ of mandamus may only force a ministerial act or prevent a clear abuse of power and cannot be used to test or overrule a judges exercise of discretion. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 409 n.3 (App. 2003).
 
Mandamus and Prohibition
     The finality requirement and its underlying rationale mandate appellate court restraint and preclude issuance of writs of mandamus on an interlocutory basis except in those rare and exceptional cases when the precise requirements for issuance of the writ are met and the appellate court in its discretion determines that immediate relief is called for. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 409 n.3 (App. 2003).
 
Appellate Review ) Decisions Reviewable; Mandamus and Prohibition
     Appellate review, in all but narrowly defined, exceptional circumstances, should be postponed until the trial court has rendered final judgment. Hence the party requesting a writ of mandamus has the burden of showing a clear and indisputable right thereto, and must show exceptional circumstances
 
[11 FSM Intrm. 407]
 
necessitating review before a final judgment is entered below. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 409 n.3 (App. 2003).
 
Constitutional Law ) Case or Dispute ) Mootness
     The FSM Constitutions "case or dispute" clause restricts the FSM Supreme Courts jurisdiction to cases and disputes, and the court is thereby precluded from making policy pronouncements on the basis of hypothetical or academic issues. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 409-10 (App. 2003).
 
Constitutional Law ) Case or Dispute ) Mootness
    The Supreme Courts lack of jurisdiction over, or inability to decide, a moot case is firmly rooted in the Constitutions requirement that there be a case or a dispute. A case or dispute becomes moot when the parties lack a legally cognizable interest in the outcome. If an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 410 (App. 2003).
 
Appellate Review ) Dismissal; Constitutional Law ) Case or Dispute ) Mootness
     When the issues presented in a petition for a writ of mandamus concerning the discovery of non-party borrower records have become moot because, by virtue of a trial court order, no further discovery will take place, the issuance of a writ of mandamus to the trial court to disallow or restrict the discovery would be ineffectual since there will be no further discovery. The petition will therefore be dismissed. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 410 (App. 2003).
 
Constitutional Law ) Case or Dispute ) Mootness
     There may be exceptions to the mootness doctrine, e.g., for situations in which an otherwise moot case may have a continuing effect on future events, including future litigation. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 410 n.5 (App. 2003).

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COURTS OPINION

DENNIS K. YAMASE, Associate Justice:

     This is a ruling on a petition for a writ of mandamus by petitioner FSM Development Bank ("FSMDB") to compel the trial court in Adams v. Island Homes Construction, Inc., Civ. No. 2000-012 ("case below") to amend its September 9, 2002 order [Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 130 (Pon. 2002)] so as to recognize the business and financial privacy rights of non-parties to this action, and then to either prohibit discovery of certain non-party borrower records or to require that such discovery only be had after an in camera review to determine first if any of the non-party borrower records are relevant to the case below. After FSMDB filed its petition, the trial court held a hearing on September 25, 2002, and issued an order on November 12, 2002, [Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 218 (Pon. 2002)], addressing a multitude of past discovery issues and ruling, inter alia, that no further discovery in this case will occur.

Based on the trial courts November 12, 2002 order, we hold that the issues raised in the

[11 FSM Intrm. 408]

petition for a writ of mandamus are now moot. Accordingly, we deny the petition.

I. Procedural Background

     FSMDB is one of the defendants in the case below. On September 19, 2002, it filed a petition for a writ of mandamus challenging a trial court order entered on September 9, 2002 by Associate Justice Martin G. Yinug. The petition raises the issue of whether business and financial privacy rights are provided by Article IV, Section 5 of the Constitution.

     The September 9, 2002 order ruled on a motion to compel discovery made by plaintiffs Yvette Adams d/b/a Pohnpei Ace Hardware and Adams Brothers Corporation (collectively, "the Adams"). Part of the order required the production of non-party borrower records. The production of those records was made subject to certain protective measures by the trial court in response to arguments raised by FSMDB regarding the confidentiality of the records.

     Although protective measures were put in place, FSMDB requested the issuance of an alternative writ of mandamus to compel the trial court to either order that the production of the non-party borrower records not be allowed or that such discovery only be allowed after an in camera review by the court to determine their relevancy.

     After FSMDB filed the petition, the trial court held a show cause hearing on September 25, 2002 and then issued an order on November 12, 2002. The order states, in pertinent part:

3. Because of its refusal to provide the loan document between the defendant Paulus Perman ("Perman") and the defendant FSM Development Bank ("the Bank"), and pursuant to FSM Rule of Civil Procedure, Rule 37(b)(2)(B), the Bank will not be permitted at the time of trial to oppose the plaintiffs third-party beneficiary claim based on that document. Further, pursuant to Rule 37(b)(2)(A), the facts necessary to establish the liability of the Bank to the plaintiffs for the construction materials that they supplied for the Panasang project based on the third-party beneficiary claim and the September 27, 1997, agreement are deemed established. As to the Bank, the only issue on which to proceed at trial will be that of damages. No further discovery in this case will occur. As provided by this courts order of April 22, 2002, discovery closed on July 1, 2002.

[Adams, 11 FSM Intrm. at 222] (emphasis added).

     On December 9, 2002, petitioner moved to amend the original petition for writ of mandamus to also include arguments opposing certain sanctions imposed by the trial court in its November 12, 2002 order. Petitioner filed an amended petition for writ of mandamus with its motion.

     On December 23, 2002, respondent Adams filed a motion to dismiss the petition for writ of mandamus on the ground that FSMDB had not filed its opening brief by the December 16, 2002 deadline. On January 3, 2003, FSMDB filed a motion for continuance to change the deadline for filing its opening brief to January 20, 2003.

[11 FSM Intrm. 409]

     On January 9, 2003, the appellate division issued an order granting a limited enlargement to petitioner FSMDB and designating the amended petition for writ of mandamus as appeal case P10-2002. The order set January 17, 2003 as the deadline for an opening brief to be filed and stated that "[p]etitioner is limited to briefing the issues raised in its original petition for writ of mandamus, not the issues raised in its amended petition, except insofar as Justice Yinug raised the issue in his response of whether the November 12, 2002 Order rendered the petition for a writ of mandamus moot. For purposes of future review of the amended petition, it will be designated Appeal Case No. P10-2002." Order at 3 (January 9, 2003).

     On January 22, 2003, this court heard oral argument regarding the original petition for writ of mandamus filed by FSMDB on September 19, 2002.

II. Discussion

     The threshold issue is whether the original petition for writ of mandamus has been rendered moot by the trial courts November 12, 2002 order stating that no further discovery in this case will occur. That order sanctioned FSMDB pursuant to FSM Rules of Civil Procedure 37(b)(2)(A) by finding that FSMDB is liable to the plaintiffs for the Panasang project construction materials and limiting its arguments at trial to the question of damages. Adams, 11 FSM Intrm. at 222, 229.

     Since the trial court ruled on the liability of the FSMDB to the Adams on their third-party beneficiary claims and since the non-party borrower records were being sought in relation to that claim of liability, discovery of the non-party borrower records was deemed no longer necessary. Accordingly, the trial court ruled that "no further discovery in this case will occur. As provided by this courts order of April 22, 2002, discovery closed on July 1, 2002." Id. at 222.

The FSM Constitution contains a "case or dispute" clause in Article XI, Section 6. In Innocenti

[11 FSM Intrm. 410]

v. Wainit , 2 FSM Intrm. 173 (App. 1986), this court recognized that this constitutional provision restricts the FSM Supreme Courts jurisdiction to cases and disputes, and that the court is "thereby precluded from making policy pronouncements on the basis of hypothetical or academic issues." Id. at 178.

     The Supreme Courts lack of jurisdiction over, or inability to decide, a moot case is firmly rooted in the Constitutions requirement that there be a case or a dispute. This court has previously stated that a case or dispute becomes moot when the parties lack a legally cognizable interest in the outcome. Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1996) (citing 32 Am. Jur. 2D Federal Practice and Procedure 332 (1982)). If an appellate court finds that any relief it could grant would be ineffectual, it must treat the case as moot. Id.

     In Berman, the plaintiff alleged that the FSM Supreme Courts admission criteria unconstitutionally discriminated against non-citizens. The plaintiff also challenged the grading of her bar examination. While her claim was pending, however, plaintiff successfully passed the bar examination. The trial court therefore concluded that her challenges to the admission criteria and grading were now moot. On appeal, this court affirmed, noting that in light of her admission to the FSM bar, any relief that the court could afford the plaintiff would be ineffectual. Berman, 7 FSM Intrm. at 16.

     Like Berman, the issues that the FSMDB has presented in its petition for a writ of mandamus concerning the discovery of non-party borrower records have become moot. By virtue of the November 12, 2002 order, no further discovery in this case will take place. [Adams, 11 FSM Intrm. at 222.] Therefore, the issuance of a writ of mandamus to the trial court to disallow or restrict the discovery of the non-party borrower records would be ineffectual since there will be no further discovery. Under these circumstances, we find that the issues raised in the petition for writ of mandamus are moot.

III. Conclusion

      The issues raised by the petitioner as a basis for the issuance of a writ of mandamus are now moot. We therefore deny the petition.

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_____________________________________

Footnotes:

1. The non-party borrower records are documents in the possession of FSMDB which relate to 19 loans made by FSMDB to individuals or entities that are not parties to either the case below or this proceeding before the appellate division.

2. Article IV, Section 5 of the Constitution states: "The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized." (emphasis added).

3. The writ of mandamus is an extraordinary remedy, the object of which is not to cure a legal error or to serve as a substitute for appeal, but to require an official to carry out a clear non-discretionary duty. A writ of mandamus may only force a ministerial act or prevent a clear abuse of power and cannot be used to test or overrule a judges exercise of discretion. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

The finality requirement and its underlying rationale mandate appellate court restraint and preclude issuance of writs of mandamus on an interlocutory basis except in those rare and exceptional cases when the precise requirements for issuance of the writ are met and the appellate court in its discretion determines that immediate relief is called for. In re Main, 4 FSM Intrm. 255, 258 (App. 1990); In re Raitoun, 1 FSM Intrm. 561, 562-63 (App. 1984). Appellate review, in all but narrowly defined, exceptional circumstances, should be postponed until final judgment has been rendered by the trial court. Hence the party requesting a writ of mandamus has the burden of showing a clear and indisputable right thereto, and must show exceptional circumstances necessitating review before a final judgment is entered below. Federated Shipping Co. v. Trial Division, 9 FSM Intrm. 270, 273 (App. 1999).

4. Article XI, Sections 6(a) and (b) of the Constitution state:

(a) The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the national government is a party except where an interest in land is at issue.

(b) The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.

5. There may be exceptions to the mootness doctrine, e.g., for situations in which an otherwise moot case may have a continuing effect on future events, including future litigation. FSM v. Louis, 9 FSM Intrm. 474 (App. 2000). We decline to apply such an exception in this case, as any constitutional issues raised here should be properly argued in the context of an actual case or dispute.