FSM SUPREME COURT TRIAL DIVISION

Cite as Etscheit Soap Co., Inc., et al. v. Gilmete, et al., 15 FSM Intrm. 285 (Pon. 2007)

[15 FSM Intrm. 285]

CARLOS ETSCHEIT SOAP COMPANY INC., YVETTE

ETSCHEIT ADAMS, and RENEE ETSCHEIT VARNER,

Plaintiffs,

vs.

IOANIS GILMETE, and BERNATETA GILMETE a/k/a

TERESIDA GILMETE,

Defendants.

CIVIL ACTION NO. 2000-002

ORDER AND MEMORANDUM

Andon L. Amaraich

Chief Justice

Hearing: May 4, 2007

Decided: September 26, 2007

APPEARANCES:

For the Plaintiffs:        Fredrick L. Ramp, Esq.

                                   P.O. Box 1480

                                   Kolonia, Pohnpei   FM   96941
 

For the Defendants:   Joseph S. Phillip, Esq.

                                   P.O. Box 464

                                   Kolonia, Pohnpei   FM   96941

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HEADNOTES

Contempt

       The FSM contempt statute expressly provides that one who is in violation of a court order may be put in jail until such time as he or she conforms his or her conduct the court’s lawful order. Before imposing a sentence for contempt, the court must determine that the person who is potentially liable for contempt knew of the order, and had the ability to obey it. Carlos Etscheit Soap Co. v. Gilmete, 15 FSM Intrm. 285, 289 (Pon. 2007).

Contempt

       By failing to move from the land as they were ordered to do, a named party and another are in contempt of the court’s permanent injunction because both knew of the injunction and had the ability to comply with it. Although the other was not a named party, he nevertheless knew of the order, and is subject to punishment for violating the order himself when he also encouraged the named party to stay on the land. Carlos Etscheit Soap Co. v. Gilmete, 15 FSM Intrm. 285, 289 (Pon. 2007).

[15 FSM Intrm 286]

Contempt

      When FSM cases have not addressed the precise point of a non-party’s contempt, the court may consider authority from other common law jurisdictions. Carlos Etscheit Soap Co. v. Gilmete, 15 FSM Intrm. 285, 289 (Pon. 2007).

Contempt

      It is plain that a non-party may be in contempt of a court order. Carlos Etscheit Soap Co. v. Gilmete, 15 FSM Intrm. 285, 289 (Pon. 2007).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

      On May 4, 2007, the court held a hearing on the plaintiffs’ February 23, 2006, motion for an order to show cause why the defendants should not be held in contempt of the judgment of the trial court entered August 16, 2002 [Carlos Etscheit Soap Co. v. Gilmete, 11 FSM Intrm. 94 (Po. 2002)]; the appellate decision affirming the trial court judgment entered on February 9, 2005 [Gilmete v. Carlos Etscheit Soap Co., 13 FSM Intrm. 145 (App. 2005)]; the second judgment affirming the trial court decision entered on February 9, 2005; and the permanent injunction entered by this court on May 13, 2005. The plaintiffs were represented by Fred Ramp. Present for the defendants were Joseph Phillip, accompanied by the defendant Bernateta Gilmete. Fred Gilmete, who is the brother of the deceased defendant Ioanis Gilmete, was also present.

      Mr. Ramp advised the court that the permanent injunction in this case entered on May 13, 2005, enjoined the defendants, their families, and people claiming under them from occupying the land that is the subject of this litigation; that the court had given these individuals numerous opportunities to relocate; and that the case has now come to the final stage in the process. He requested that the court enter an order of contempt and sentence Bernateta Gilmete and Fred Gilmete to a term of 60 days incarceration as punishment for that contempt. He further requested that imposition of the sentence be suspended for a period of 14 days to give Bernateta Gilmete, Fred Gilmete, and those claiming through them the opportunity to vacate the premises. He further requested that the court order the national police to appear on the property to insure peaceful activities in the event that the order to vacate the property is not complied with. Mr. Ramp indicated that the order he is seeking is modeled after the one framed in Civil Action 1997-064, where the court’s suspended sentence was effective. He stated that it was hoped that a similar order would also work in this case. Mr. Ramp indicated that the defendants had had adequate opportunity to leave; that it was very, very clear that they must leave after entry of the permanent injunction two years ago; and that they had had an additional opportunity for doing so. Mr. Ramp stated that the court should now issue an order that requires compliance.

      The court inquired about an exceptions to the plaintiffs’ use of the property, and Mr. Ramp indicated that paragraph five of the permanent injunction entered on May 13, 2005, had allowed the defendants to stay for 180 days on the condition that they not bury any family members on the property, and that they not construct any buildings.

      Mr. Phillip then addressed the court. He stated that he wanted the court to find the defendants not in contempt, and that the case cited by the plaintiffs where the court had suspended the imposition of a jail sentence was different factually from the present case. He also stated that he was not sure, but thought that there might be a case pending in the Pohnpei Land Court involving the land.

[15 FSM Intrm 287]

      Mr. Phillip then called defendant Bernateta Gilmete to the stand. She testified that she was 47, had four children, the oldest being 27, and also had two grandchildren. She testified that she had received the order saying that she had to leave, but that she had not complied because she "just can’t", and that she had no place to move. She stated that her children were born there, and that she was used to that place. Traditional leaders had advised her not to move. She also said there was a pending case in the Pohnpei State Court. She said that she had a sizable concrete structure on the land.

      On cross-examination by Mr. Ramp, Ms. Gilmete testified that she knew of the court order requiring them to leave the land, and that Fred Gilmete, brother of her deceased husband, had encouraged her to remain. When plaintiffs and plaintiffs’ employees had approached the area near where she lives, Fred Gilmete had ordered them to leave. She stated that all of her children are 18 or older except for Dan Gilmete, who is 12, and that she had made no efforts to find another place since the hearing in February of 2007. The permanent injunction was entered in May of 2005, and from that time to February of 2007, she had also not made any efforts to find another place. She, her four children, and her two grandchildren remain living on the property. In addition to Dan Gilmete, there is Mercedes, 27, Rocky, 25, and John Jr., 23, and the two grandchildren. She did not know if the case in Pohnpei state court was still going on or had been dismissed. She said that the traditional leaders had not told her to defy the court order, but had told her not to move, and that they would look for a solution.

      The court then asked whether she was aware of the judgment, and she testified that she was. She stated that she was not born on the land, that she came from Ahwak, and that she has two older brothers and one younger brother. She also has other relatives outside of U, including Aloysius Ladora in Kitti, who is related to her father. She also stated that the Nahnken of Nett is also a relative of her father.

      Mr. Ramp then summarized. He stated that nothing presented changed the plaintiffs’ request. He stated that the defendant knew of the judgment, and had taken no steps to find another place to live. The state court case, which to Mr. Ramp’s knowledge had been dismissed, should not have any impact. He stated that the court had reached the end of the process. He did not know what the communications had been with the traditional leaders, but their positive role should not affect the case. None of the reasons given for not leaving are valid, and an order of contempt should issue. He reiterated that the court should issue an order imposing 60 days in jail for Bernateta and Fred Gilmete for contempt, subject to a short period during which the sentence would be suspended to permit compliance. The national police should be present if it is necessary to make arrests. The permanent injunction enjoined all family members and those claiming through them.

      Joe Phillip then stated that the defendants should not be found in contempt because they have no place to go, that they had gone to the traditional leaders, who had advised them to hold on a bit. He asked that there be no finding of contempt.

      Lastly, Mr. Ramp responded that the defendants have not tried to find another place. He also stated that his clients had never been served with notice of a state court case.

      Before the court turns to the contempt issue, it notes the following. This case’s history is long. It was filed more than 7 years ago in January of 2000. On August 16, 2002, the court granted the plaintiffs’ motion for summary judgment, and on August 18, 2002, the court entered judgment in plaintiffs’ favor that provided that the defendants were prohibited from entering onto the disputed property. On September 17, 2002, the defendants filed a notice of appeal and applied for a stay pending the appeal. On February 25, 2003, the court effectively granted the stay pending the appeal by entering a permanent injunction that restrained the defendants from interfering with the plaintiffs’

[15 FSM Intrm 288]

use of the land "outside of the approximate boundaries of defendants’ present occupation of Parcel No. 046-A-011." The appellate division affirmed this court’s summary judgment on February 9, 2005 and this court entered a permanent injunction on May 13, 2005. The injunction enjoined the defendants’ families and all persons claiming through them from interfering with the plaintiffs’ use and enjoyment of the property. Defendants did not heed the injunction.

      On February 23, 2006, the plaintiffs filed their motion for an order to show cause why the defendants and their families should not be held in contempt of this court’s August 12, 2002, judgment; the appellate division’s February 9, 2005, opinion and judgment affirming this court’s judgment; and this court’s May 13, 2005, permanent injunction. The first hearing on the plaintiffs’ motion for an order to show cause was scheduled for July 25, 2006. At that hearing the defendants’ counsel, Mr. Joseph Phillip, appeared and made an oral motion to withdraw as counsel for the defendants. The court granted the defendants a substantial continuance of 90 days in order to give the defendants the opportunity to obtain new counsel, with Mr. Phillip to remain as the defendants’ counsel in the interim. At that the July 25, 2006, hearing, Mr. Ramp also advised the court that plaintiffs had offered the defendant and those claiming through her to move materials off the property, and help them build an adequate house, but that the defendant had rejected the offer. The court directed Mr. Phillip to explain to the defendants what an order to show cause is, and that they would have an opportunity to explain why they had not complied with the court’s order.

      On October 25, 2006, the court held an in-chambers status conference on the order to show cause. Initially, neither Ms. Gilmete nor Fred Gilmete were present. Mr. Phillip advised the court that he still wished to withdraw as counsel, while Mr. Ramp advised that the plaintiffs had made an offer of $10,000 to defendants in construction materials and assistance with moving. Before the close of the conference, the defendant Bernateta Gilmete and Fred Gilmete arrived, and she, along with Fred Gilmete, denied that they had discharged Phillip. A further in-chambers status conference was held on November 24, 2006, at which Mr. Phillip requested an extension of time on the basis that traditional leaders were involved in attempting a settlement. The court set a hearing on the order to show cause on January 16, 2007. That hearing was postponed at plaintiffs’ counsel’s request until February 21, 2007, when an in-chambers status conference was again held. Mr. Ramp reiterated that the plaintiffs had offered the defendants $10,000 in building materials and moving assistance, and Mr. Phillip advised that the defendants had refused the offer. The court gave the parties the opportunity to address the court, and although Bernateta Gilmete declined the opportunity, Fred Gilmete did speak. The court encouraged the parties to continue exploring settlement, and set the matter for a show cause hearing on March 27, 2007. That hearing was re-set to May 4, 2007, due to a change in the court’s calendar.

      The foregoing chronology shows that the court has given the defendants every opportunity to understand the necessity of, and to prepare for, departing from the plaintiffs’ property ever since this court’s judgment was entered on August 18, 2002. Every consideration has been accorded by the court to the defendants, including permitting them to remain on the land while the case was on appeal. However, as Bernateta Gilmete testified during the May 4, 2007, hearing, she has not made any efforts to find another place to reside from the time this case was filed more than seven years ago up through May of this year. She and her family continue to live on the land. This is the case despite her testimony that she has family members in both U and Kitti.

      The FSM civil contempt statute is found at Section 119 of Title 4 of the F.S.M. Code. It provides in relevant part as follows:

(1)  Any justice of the Supreme Court shall have the power to punish contempt of court. Contempt of court is:

[15 FSM Intrm 289]

      .  .  .  .

      (b)  any intentional disobedience or resistance to the court’s lawful writ, process, order, rule, decree, or command.

(2)  All adjudications of contempt shall be pursuant to the following practices and procedures:

      (a)  Any person accused of committing any civil contempt shall have a right to notice of the charges and an opportunity to present a defense and mitigation. A person found in civil contempt may be imprisoned until such time as he complies with the order.

     Thus, the FSM statute expressly provides that one who is in violation of a court order may be put in jail until such time as he or she conforms his or her conduct the court’s lawful order. Before imposing a sentence for contempt, the court must determine that the person who is potentially liable for contempt knew of the order, and had the ability to obey it. Barrett v. Chuuk, 12 FSM Intrm. 558, 561 (Chk. 2004).

      By failing to move from the land as they were ordered to do, Bernateta Gilmete and Fred Gilmete are in contempt of the court’s permanent injunction of May 13, 2005. Rodriguez v. Bank of the FSM, 11 FSM Intrm. 367, 382 (App. 2003); Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 453 (App. 1996). Both Bernateta Gilmete and Fred Gilmete knew of the injunction and had the ability to comply with it. Barrett, 12 FSM Intrm. at 561. Although Fred Gilmete is not a named party, he nevertheless knew of the order, and is subject to punishment for violating the order himself. He also encouraged Bernateta Gilmete to stay on the land.

      FSM cases have not addressed this precise point of a non-party’s contempt, and in such instances the court may consider authority from other common law jurisdictions. Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985). In this regard, it is plain that a non-party may be in contempt of a court order. Dole Fresh Fruit Co v. United Banana Co., Inc., 821 F.2d 106, 109 (2d Cir. 1987) (holding that even though officers or employees of the defendant corporation were not parties to the underlying action and were not personally served, they were within the scope of the retraining order and subsequent injunction ordering the defendant corporation not to dissipate the assets of a trust, and that the trial court had the power to hold individual officers and employees in contempt for violating the TRO and the injunction); Weiss v. State ex rel. Cardine, 455 P.2d 904 (Wyo. 1969) (holding that individuals who aid and abet parties against whom an injunction has been entered in disobeying it, or who conspire with them for it violation, are guilty of contempt of court if they have actual knowledge of the injunction, although they themselves are not parties to the suit or named in the order granting the injunction), cert. denied, 398 U.S. 927 (1970).

      On September 21, 2007, the court held a hearing in which it announced its finding on the contempt question. Fred Ramp was present for the plaintiffs. Joe Phillip was present for Bernateta and Fred Gilmete, both of whom were also present. The court stated that it had given the parties the opportunity to address both sides of the issue, and had also given the defendants the opportunity to comply with the permanent injunction. Based on the parties’ prior presentations the court announced its findings as follows.

      Fred Gilmete and Bernateta Gilmete were aware of the injunction requiring them to vacate the property. They did not do anything to try to vacate even though they were aware of the injunction. They did not try to vacate the property because they did not intend to relocate. If they had made the necessary efforts, they would have been able to relocate.

[15 FSM Intrm 290]

      Accordingly, the court finds that Fred Gilmete and Bernateta Gilmete are in violation of the court’s permanent injunction of May 13, 2005, and are in contempt of court. They are sentenced to a jail term of 60 days. However, they will not begin to serve the sentence until 30 days from the date of the entry of this order so that they may have one last opportunity to comply. If they do comply and move from the land, then the sentence imposed by this order will be vacated. In the event that they do not comply, all necessary action will be undertaken by the court in order to have them escorted to jail. The court stresses that Fred Gilmete and Bernateta Gilmete hold the keys to the jail in their own hands.

      To assist Fred Gilmete, Bernateta Gilmete, and the court to effectuate the move, the court herewith appoints John William, the National Justice Ombudsman, as a special master pursuant to FSM Civil Rule 58. The work of the special master will begin upon issuance of this decision. The court may issue further orders with respect to this matter in order to assist the work of the special master.

      In conclusion, the court notes that for more than one year, the court has done everything possible to facilitate the defendants’ own voluntary relocation. The court stresses that the opportunity still exists for the defendants to comply within the next 30 days, and urges them to do so.

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