FSM SUPREME COURT TRIAL DIVISION
Cite as Bank of the FSM v. Rodriguez
11 FSM Intrm. 542 (Pon. 2003)
 
[11 FSM Intrm. 542]
 
BANK OF THE FEDERATED STATES OF
MICRONESIA,
Plaintiff,
 
vs.
 
PATRICIO RODRIGUEZ,
Defendant.
 
CIVIL ACTION NO. 1997-040
 
ORDER
 
Andon L. Amaraich
Chief Justice
 
Decided: May 19, 2003

[11 FSM Intrm. 543]

APPEARANCES:
 
For the Plaintiff:                      Stephen V. Finnen, Esq.
                                                Law Offices of Saimon & Associates
                                                P.O. Box 1450
                                                Kolonia, Pohnpei FM 96941
 
For the Defendant:                Kosaky Phillip, Esq.
                                               Micronesian Legal Services Corporation
                                               P.O. Box 129
                                               Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure ) Parties
      If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties, and unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party. Bank of the FSM v. Rodriguez, 11 FSM Intrm. 542, 544 (Pon. 2003).
 
Contempt
     When a defendant who was found in contempt of court for failure to comply with an order in aid of judgment later dies, the court will vacate its order sentencing him to jail. Bank of the FSM v. Rodriguez, 11 FSM Intrm. 542, 544 (Pon. 2003).
 
Civil Procedure ) Dismissal; Judgments
     When a judgment was entered in a plaintiffs favor and against a defendant prior to the defendants death, dismissal of the matter is not appropriate as the claim has not been extinguished. The unsatisfied portion of the judgment still exists. Bank of the FSM v. Rodriguez, 11 FSM Intrm. 542, 544 (Pon. 2003).

* * * *

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

     On February 18, 2003, the appellate division of the FSM Supreme Court issued its opinion in this matter on defendants appeal from the trial divisions post-judgment finding of contempt of court for failure to comply with an order in aid of judgment. [Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367 (App. 2003).] The appellate division made four specific findings in regards to the trial courts May 21, 2001 order.

     (1) The appellate division found that the trial court did not err in finding defendant in contempt based on its conclusion that he had the ability to comply with the April 25, 2002 order and that he failed to demonstrate that he could not comply with the order.

     (2) The appellate division found that the trial court did not violate 53 F.S.M.C. 604 in ordering

[11 FSM Intrm. 544]

defendant to pay $65.00 per month to plaintiff after defendant had presented evidence that his only source of income was Social Security benefits.

     (3) The appellate division found that the trial courts contempt order sentencing defendant to jail if he did not comply with the order did not violate defendants constitutional rights against imprisonment for debt.

     (4) The appellate division found that the trial courts finding that defendant seek immediate employment was not in violation of the constitutional prohibition on involuntary servitude, but where defendant had submitted evidence that he is unable to work, the trial court must make a finding on the defendants fitness to work before ordering him to seek immediate employment.

     The appellate division vacated those parts of the trial courts contempt order requiring defendant to seek immediate employment and remanded the matter to the trial court for the limited purpose of allowing the trial court the opportunity to make a finding on the fitness to work issue.

     However, on May 7, 2003, defendant filed a statement of the fact of defendants death. According to the filing, defendant passed away on March 6, 2003 of hypovolemic shock. Defendant thus moves for dismissal pursuant to Rule 25(a)(1) of the FSM Rules of Civil Procedure.

     Pursuant to Rule 25(a)(1) of the FSM Rules of Civil Procedure, if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. And unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.

     On May 8, 2003, plaintiff filed a response to notice of death of Patricio Rodriguez. Plaintiff states that the appellate division was asked to address four issues, and affirmed the trial court on three of them. On the fourth issue, the trial court required defendant to seek immediate employment and report to the bank once he obtained employment.

     Plaintiff claims that due to defendants death, the requirement of making a factual determination on defendants fitness to work is moot. However, the balance of the opinion remains, and should be acknowledged by the trial court as it was determined prior to defendants death. Plaintiff also claims the judgment should remain.

Analysis

     The trial court acknowledges the opinion of the appellate division entered on February 18, 2003. The appellate division vacated that portion of this courts May 21, 2001 order requiring defendant to seek immediate employment and remanded to this court the issue of defendants fitness to work. Ordinarily, this court would be obligated to conduct a hearing on defendants fitness to work in accordance with the appellate divisions opinion. However, due to defendants death, clearly this court cannot conduct such a hearing. Further, this court hereby vacates that portion of its May 21, 2001 order sentencing defendant to serve sixty days in the Pohnpei State Jail.

     However, this court agrees with plaintiff that this case should not be dismissed. As a judgment was entered in favor of plaintiff and against defendant prior to defendants death, so dismissal of this matter is not appropriate as the claim has not been extinguished. FSM Civ. R. 25(a)(1). The unsatisfied portion of the judgment still exists. However, now that defendant has passed away, this court has no power to order defendant to do anything to satisfy the judgment. This case is hereby closed.