CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Chuuk v. Andrew, 15 FSM Intrm. 39 (Chk. S. Ct. App. 2007)

[15 FSM Intrm. 39]

STATE OF CHUUK,

Appellant,

vs.

ANAS ANDREW,

Appellee.

CIVIL APPEAL CASE NO. 11-2001

OPINION

Argued: April 26, 2007

Decided: May 28, 2007

BEFORE:

Hon. Benjamin Rodriguez, Temporary Justice, Presiding*

Hon. Dennis K. Yamase, Temporary Justice**

Hon. Repeat Samuel, Temporary Justice***
 

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

**Associate Justice, FSM Supreme Court, Chuuk

***Attorney at Law, Weno, Chuuk
 

[15 FSM Intrm. 40]
 

APPEARANCES:

For the Appellant:    Tony Rosokow (brief)

                                 Francis Sain (argued)

                                 Chuuk Assistant Attorneys General

                                 P.O. Box 189

                                 Weno, Chuuk   FM   96942
 

For the Appellee:     Ben K. Enlet

                                 P.O. Box 1650

                                 Weno, Chuuk   FM   96942

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HEADNOTES

Constitutional Law ) Due Process ) Notice and Hearing

      The issuance of an order against the State without permitting the State both notice and an opportunity to be heard, either orally at a hearing or by giving sufficient time to submit a written response, violates the State’s right to due process. Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).

Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

      A judgment-creditor’s motion that asks for a court order to assist it in obtaining, or to facilitate, the payment of a money judgment, is a motion for an order in aid of judgment regardless of what the movant has called it because a thing is what it is regardless of what someone chooses to call it. Chuuk v. Andrew, 15 FSM Intrm. 39, 42 & n.1 (Chk. S. Ct. App. 2007).

Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

       The procedure for a judgment creditor to obtain an order in aid of judgment and the authority for a court to issue one, is contained in section 55 of Title 8 of the Trust Territory Code, which requires the court, after notice to the opposite party, to hold a hearing on the question of the debtor’s ability to pay and to determine the fastest manner in which the debtor can reasonably pay a judgment based on the finding. Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).

Transition of Authority

      Under the Chuuk Constitution’s Transition Clause, Trust Territory Code Title 8 is still applicable law in Chuuk. Chuuk v. Andrew, 15 FSM Intrm. 39, 42 n.2 (Chk. S. Ct. App. 2007).

Appellate Review ) Standard of Review ) Civil Cases; Constitutional Law ) Due Process; Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

      When no hearing was held before the court issued its December 14, 2001 order in aid of judgment and no finding was made on the debtor’s ability to pay in December 2001, the December 14, 2001 order was issued in violation of the State’s right to due process and the order constitutes an abuse of the trial court’s discretion. Chuuk v. Andrew, 15 FSM Intrm. 39, 42 (Chk. S. Ct. App. 2007).

Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

      When the State has not made the appropriation act a part of the record, the appellate court is unable to determine whether the $20,000 ordered payment to a judgment-creditor violated the terms of that statute or whether it was only contrary to the Executive branch’s hoped-for distribution of the appropriated funds. Chuuk v. Andrew, 15 FSM Intrm. 39, 42-43 (Chk. S. Ct. App. 2007).

[15 FSM Intrm. 41]

Debtors’ and Creditors’ Rights ) Orders in Aid of Judgment

      The trial court must not issue any orders in aid of judgment against the State without affording the State notice and an opportunity to be heard and a finding that the State has the physical and legal ability to pay. Chuuk v. Andrew, 15 FSM Intrm. 39, 43 (Chk. S. Ct. App. 2007).

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COURT’S OPINION

BENJAMIN RODRIGUEZ, Temporary Justice, Presiding:

      This appeal came on for oral argument on April 26, 2007.  The appellant, State of Chuuk, had filed its opening brief on February 4, 2002.  No brief was filed by the appellee.  Chuuk therefore moved orally, pursuant to Appellate Rule 31(c), that the appellee, Anas Andrew, be denied the opportunity to present oral argument.  Andrew’s counsel claimed he never received a copy of the brief.  The panel judges’ files did not contain a copy of the brief although the appellate clerk’s file did.  We therefore permitted Andrew to present oral argument and gave him until May 15, 2007 to file an answering brief to supplement his oral argument.  We further ordered that if Andrew filed a brief, then the State would have seven days to file a reply brief and that once the supplemental briefing had been completed, this appeal was submitted for our decision.  Andrew did not file an answering brief.

I.

       This appeal arises from the enforcement of a judgment for damages for the continuing trespass of three State-owned telephone poles on land on Fefan owned by Andrew.  The trial court, based on certain stipulations, entered a judgment on May 15, 2001 in Andrew’s favor which included a payment schedule with the first payment of $20,000 to be made on or before December 20, 2001.  On December 13, 2001, Andrew filed a motion asking the court to order the defendant State to prepare a check payable to Andrew and scheduled a hearing for 2:00 p.m. the following day.

      On December 14, 2001, the trial court issued an order directing the Director and Deputy Director of Finance to personally prepare a $20,000 check for Andrew by 4:30 p.m. that day.  At 2:30 p.m., December 14, 2001, the State filed a notice of appeal from that order and a motion to stay. On December 18, 2001, the trial court denied the motion to stay without giving any reasons and ordered payment by 4:30 p.m., December 18, 2001.

      On June 21, 2002, Andrew filed a motion similar to his December 13, 2001 motion, asking the court for an order against the State, to be issued without notice, requiring the State to make the second $20,000 payment (which had been due on May 15, 2002) immediately.   On June 25, 2002, the trial court ordered the second $20,000 payment to be made by 4:30 p.m. that day.   On August 13, 2002, the State moved for relief from that order on the ground that it had been issued without hearing. No ruling on the motion was entered.

      At the April 25, 2007 oral argument, counsel informed the court that this and other payments had been made, but that there was still money owed on the judgment.

II.

      The State raises as issues on appeal that the trial court erred in issuing its December 14, 2001 order 1)  when that order was issued before any hearing had been held on the motion; 2)  that the order violated the State Judiciary Act provision barring execution, attachment, and garnishment of public

[15 FSM Intrm. 42]

property; 3)  that it violated 6 F.S.M.C. 707, which bars garnishment of funds held by the FSM for a state; 4)  that it violated the state constitutional provision barring payment of public funds except by statute; and 5)  that it violated the statute concerning orders in aid of judgment requiring a hearing on the debtor’s ability to pay.

      At oral argument, the State also raised the issue that the judgment in this case exceeds the limit allowable under the Chuuk Sovereign Immunity Act.  Andrew correctly pointed out that that issue was not included among the State’s statement of the issues on appeal and we have not considered it.

III.

      The issuance of an order against the State without permitting the State both notice and an opportunity to be heard, either orally at a hearing or by giving sufficient time to submit a written response, violates the State’s right to due process.  See Wainit v. Weno, 10 FSM Intrm. 601, 606 (Chk. S. Ct. App. 2002) (notice and an opportunity to be heard is the essence of due process); Kama v. Chuuk, 10 FSM Intrm. 593, 598 (Chk. S. Ct. App. 2002) (when a trial court sua sponte set aside a judgment without notice and an opportunity to be heard, it acted without due process of law).  Issuance of the December 14, 2001 order without affording the State an opportunity to be heard was thus an abuse of the trial court’s discretion.

      A judgment-creditor’s motion that asks for a court order to assist it in obtaining, or to facilitate, the payment of a money judgment, is a motion for an order in aid of judgment regardless of what the movant has called it.  The procedure for a judgment creditor to obtain an order in aid of judgment and the authority for a court to issue one is contained in section 55 of Title 8 of the Trust Territory Code.  That section requires "the court, after notice to the opposite party, shall hold a hearing on the question of the debtor’s ability to pay and determine the fastest manner in which the debtor can reasonably pay a judgment based on the finding." 8 TTC 55.  No such hearing was held before the court issued its December 14, 2001 order, which, by its nature, was an order in aid of judgment.  Nor was a finding made on the debtor’s ability to pay in December 2001.  The December 14, 2001 order was therefore issued in violation of the State’s right to due process. This constitutes an abuse of the trial court’s discretion.

      The Chuuk Constitution provides that: "No public funds may be paid out of the treasury of the State of Chuuk except as prescribed by statute." Chk. Const. art. VIII, § 2.  And section 4 of the Judiciary Act of 1990, Chk. S.L. No. 190-08, § 4, denies courts "the power of attachment, execution and garnishment of public property."  However, the December 14, 2001 order did not attempt to attach, execute on, or garnish public funds since it is apparent from the record that some money had been appropriated to pay claims against the State.  (Whether there was sufficient appropriated and unobligated funds available to make the $20,000 payment is unknown. No such finding was made.)  The State further contends that the court’s order disrupted its planned disbursement of payments to other Chuukese judgment-creditors and deviated from the Executive’s planned program to accommodate all pending claims against the State, and may have caused a shortfall in its payments on other legitimate claims against the State.  But since the State has not made the appropriation act a part of the record, we are unable to determine whether the $20,000 payment to Andrew violated the terms of that statute

[15 FSM Intrm. 43]

or whether it was only contrary to the Executive branch’s hoped-for distribution of the appropriated funds.  We therefore cannot determine whether the December 14, 2001 order in aid of judgment, if it had been granted after notice and an opportunity to be heard, was in violation of the Chuuk Constitution article VIII, section 2 and section 4 of the Chuuk Judiciary Act. Lastly, there is no basis in the record to hold that the trial court violated 6 F.S.M.C. 707 because there is nothing in the record to indicate that any of the funds used were garnished from the national government holdings of state funds.

IV.

      Accordingly, the trial court’s December 14, 2001 order, to the extent that it is not already moot, is vacated as an abuse of the trial court’s discretion.  The trial court shall issue no further orders in aid of judgment without affording the State notice and an opportunity to be heard and a finding that the State has the physical and legal ability to pay.

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Footnotes:

1.  A thing is what it is regardless of what someone chooses to call it. McIlrath v. Amaraich, 11 FSM Intrm. 502, 505-06 (App. 2003).

2.  Under the Chuuk Constitution’s Transition Clause, Chk. Const. art. XV, § 9, Trust Territory Code, Title 8 is still applicable law in Chuuk. Kama v. Chuuk, 10 FSM Intrm. 593, 600 (Chk. S. Ct. App. 2002).

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