FSM SUPREME COURT APPELLATE DIVISION
Cite as FSM Dev. Bank v. Yinug
11 FSM Intrm. 437 (App. 2003)
 
[11 FSM Intrm. 437]
 
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. P10-2002
 
ORDER AND MEMORANDUM DENYING PETITION
 
Decided: March 24, 2003
 
BEFORE:
 
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
 
APPEARANCE:
 
For the Petitioner:                            James Woodruff, Esq.
                                                          FSM Development Bank Legal Counsel
                                                          P.O. Box M
                                                          Kolonia, Pohnpei FM 96941
 
[11 FSM Intrm. 438]
 
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HEADNOTES
 
Mandamus and Prohibition
     An amended petition for a writ of mandamus is considered a separate petition for writ of mandamus involving the same parties. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 440 (App. 2003).
 
Mandamus and Prohibition
     A 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 nondiscretionary duty. The writ may only force a ministerial act or prevent a clear abuse of power; it cannot be used to test or overrule a judges exercise of discretion. It issues only where there is no other adequate remedy available. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 441 (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. 437, 441 (App. 2003).
 
Mandamus and Prohibition
     Only under special circumstances should the Appellate Division issue a writ of mandamus to alter the conduct of the trial judge before the trial court has completed proceedings and reached a final decision. The object of the requirement is to prevent piecemeal litigation which would result from the use of interlocutory appeals. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 441 n.4 (App. 2003).
 
Appellate Review ) Decisions Reviewable; Mandamus and Prohibition
     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 petitioning for 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. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 441 (App. 2003).
 
Mandamus and Prohibition
     When, although a review of the record would appear to indicate that adequate notice and opportunity to be heard were provided, the issue of whether the petitioner had notice and an opportunity to be heard is one that is properly raised on appeal from a final judgment or order. That is its remedy at law and the petition will be denied when petitioner has not shown that this remedy is unavailable or inadequate, or that the extraordinary circumstances exist for the issuance of a peremptory writ and it has not provided compelling justification and the court does not find the exceptional circumstances that would justify the issuance of the extraordinary writ of mandamus necessitating review before a final judgment below. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 441 (App. 2003).
 
Mandamus and Prohibition
     Issuance now of a writ of mandamus cannot serve as a substitute for the pending appeal. FSM Dev. Bank v. Yinug, 11 FSM Intrm. 437, 441 (App. 2003).

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[11 FSM Intrm. 439]

COURTS OPINION

PER CURIAM:

I. Background

     On September 19, 2002, the FSM Development Bank ("FSMDB") filed a petition for writ of mandamus challenging a trial court order entered on September 9, 2002 [Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 130 (Pon. 2002)] by Associate Justice Martin G. Yinug in the case of Adams v. Island Homes Construction, Civ. Act. No. 2000-012 ("case below"). The petition asserts the existence of a business and financial privacy right under 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. In response to FSMDBs arguments regarding the records confidentiality, the trial court required that production of these records would be subject to certain protective measures.

     Thereafter, FSMDB petitioned this court to issue 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

[11 FSM Intrm. 440]

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 v. Island Homes Constr., Inc., 11 FSM Intrm. 218, 222 (Pon. 2002)] (emphasis added).

     On November 19, 2002, FSMDB filed a notice of appeal, assigning error to portions of the November 12, 2002 order. That appeal was designated as Appeal No. P8-2002.

     On December 9, 2002, FSMDB moved to amend the original petition for a writ of mandamus to 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.

     The amended petition for writ of mandamus reiterates the issues raised in the original petition, regarding the discovery of non-party borrower records, and additionally argues that FSMDB was denied adequate notice and hearing on the sanctions imposed by the November 12, 2002 order.

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

     On January 9, 2003, the appellate division issued an order granting a limited enlargement to FSMDB and designating the amended petition for writ of mandamus as Appeal Case No. P10-2002. The order granted FSMDB until January 17, 2003 to file its opening brief and stated that "[f]or purposes of future review of the amended petition, it will be designated Appeal Case No. P10-2002." Order at 3 (Jan. 9, 2003).

     On January 22, 2003, the appellate division heard oral argument regarding the original petition for writ of mandamus (Appeal Case No. P5-2002) filed by FSMDB on September 19, 2002. On March 7, 2003, the appellate division held that the issues relating to the discovery of the non-party borrower records were rendered moot by virtue of the trial courts November 12, 2002 order; accordingly, the original petition was denied. [FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405, 410 (App. 2003).]

II. Discussion

     Pursuant to the appellate divisions January 9, 2003 order, the amended petition is considered a separate petition for writ of mandamus involving the same parties as in FSM Development Bank v. Hon. Martin Yinug et al., Appeal Case No. P5-2002. The amended petition is partly based upon the same issues regarding non-party borrower records that were deemed moot in the aforementioned case. Accordingly, we address only the remaining issues pertaining to notice and hearing requirements for the sanctions imposed by the trial courts November 12, 2002 order.

     Petitioner FSMDB asserts that any sanctions relating to discovery matters other than the nonparty borrower records, could not properly issue without notice and hearing which FSMDB contends was not provided. The FSMDB therefore petitions this court for a writ of mandamus to compel the trial court to provide for appropriate notice and hearing.

     A 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 nondiscretionary duty. A writ of mandamus may only force a ministerial act or prevent a clear abuse of power; it cannot be used to test or overrule a judges exercise of discretion. Senda v. Trial Division, 6 FSM Intrm. 336

[11 FSM Intrm. 441]

, 338 (App. 1994). A writ of mandamus issues only where there is no other adequate remedy available. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997).

     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 petitioning for 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).

     Although a review of the record would appear to indicate that adequate notice and opportunity to be heard were provided, the issue of whether FSMDB had notice and an opportunity to be heard is one that is properly raised on appeal from a final judgment or order. That is FSMDBs remedy at law. FSMDB has not shown that this remedy is unavailable or inadequate, or that the extraordinary circumstances exist for the issuance of a peremptory writ.

     Accordingly, petitioner FSMDB has not provided compelling justification and we do not find the exceptional circumstances that would justify the issuance of the extraordinary writ of mandamus necessitating review before a final judgment below. Additionally, in this case a notice of appeal was filed on November 19, 2002, which was prior to this petition for writ of mandamus. Issuance now of a writ of mandamus would only serve as a substitute for the pending appeal.

     In re Sanction of Michelsen, 8 FSM Intrm. 108 (App. 1997), as cited by FSMDB, is distinguishable from the present case. Michelsen held that a Rule 11 attorney sanction order is

[11 FSM Intrm. 442]

immediately appealable, but only if the sanctioned attorney proceeds under his or her own name, as the real party in interest. In this case, we do not have an attorney being sanctioned under his or her own name and as the real party in interest.

III. Conclusion

     For the reasons discussed above, we do not find that the necessary requirements for an extraordinary writ of mandamus are present and we conclude that the writ should not be granted. We therefore deny the petition.

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______________________________________

Footnotes:

1. This first petition for writ of mandamus was designated and numbered as FSM Development Bank v. Hon. Martin Yinug et al., Appeal Case No. P5-2002. [FSM Dev. Bank v. Yinug, 11 FSM Intrm. 405 (App. 2003).]

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 protective measures included an initial inspection by counsel of the non-party records. Counsel was ordered to keep the results of that review in confidence, and was to advise the court of the result of that inspection before any copying or other disclosure of any kind would be permitted. [Adams v. Island Homes Constr., Inc., 11 FSM Intrm. 218, 227 (Pon. 2002).]

4. Only under special circumstances should the Appellate Division issue a writ of mandamus to alter the conduct of the trial judge before the trial court has completed proceedings and reached a final decision. In re Raitoun, 1 FSM Intrm. 561, 562-63 (App. 1984). The object of the requirement is to prevent piecemeal litigation which would result from the use of interlocutory appeals.

5. In the November 12, 2002 order, the trial court stated:

The court indicated in its September 9, 2002, order that it would rule on all pending discovery fees and sanctions motions, which the court had previously deferred until the time of trial. That order also gave the Bank until September 23, 2002, to respond to all of the pending sanctions motions. The Bank filed its response on September 25, 2002. On September 23, 2002, the plaintiffs filed their supplement to requests for attorneys fees and sanctions, in which they request their attorneys fees and expenses associated with, by their count, five different discovery issues that have arisen in this case.

Adams, 11 FSM Intrm. at 228.

The trial court cited Rule 37(a)(4) of the FSM Rules of Civil Procedure and further stated that: "The opportunity for hearing is complied with by considering written submissions from the affected parties. 7 James Wm. Moore et al., Moores Federal Practice 37.23[5] (3d ed. 1999)." Adams, 11 FSM Intrm. at 228. Additional sanctions were also imposed by the trial court pursuant to Rule 37(b)(2)(A) and (B) of the FSM Rules of Civil Procedure. Those sanctions were imposed after the show cause hearing held on September 25, 2002.

6. Rule 21 (b) of the FSM Rules of Appellate Procedure states in pertinent part:

The remaining article XI, section 3 justice(s) of the Federated States of Micronesia Supreme Court, acting as the appellate division, are eligible to consider the petition [for writ of mandamus]. If the remaining fulltime justice(s) are of the opinion that the writ clearly should not be granted., they shall deny the petition. Otherwise they shall order that an answer be filed[.]