CHUUK STATE SUPREME COURT
APPELLATE DIVISION

Cite as Cholymay v. Chuuk State Election Comm’n
10 FSM Intrm. 220 (Chk. S. Ct. App. 2001)

[10 FSM Intrm. 220]

ALANSO CHOLYMAY,
Appellant,

vs.

CHUUK STATE ELECTION COMMISSION and
TRACY SOULENG
and VICTOR GOULAND, real parties in interest,
Appellees.

APPEAL CASE NO. 02-2001

ORDER GRANTING COSTS

Decided: June 6, 2001

BEFORE:

Hon. Richard H. Benson, Temporary Justice, Presiding, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**
Hon. Jerry L. Coe, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, FSM Supreme Court
**qualified attorneys in the State of Chuuk

APPEARANCE:

For the Appellees:	Wesley Simina, Esq.
(Souleng & Gouland)	P.O. Box 94
Weno, Chuuk FM 96942

[10 FSM Intrm. 221]

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HEADNOTES

Costs; Elections
If, on appeal the Chuuk State Supreme Court confirms the election, judgment shall be rendered against the contestants, for costs, in favor of the defendant. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 222 (Chk. S. Ct. App. 2001).

Elections
When, if an election contestant were declared a winning candidate, only one of two other candidates would no longer be a winning candidate, both may properly be considered defendants under the election statute when it is uncertain which of those two the contestant would have displaced if he had succeeded in being elected. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 222 (Chk. S. Ct. App. 2001).

Attorney, Trial Counselor and Client  Fees; Costs
Attorney's fees awarded as an element of costs are not to be confused with the award of attorney's fees recoverable as a part of damages pursuant to either statute or contract. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Attorney, Trial Counselor and Client  Fees; Costs
Attorney's fees are not a part of recoverable costs under the common law. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Statutes  Construction
Generally, statutes and enactments in derogation of the common law, or existing law, are to be strictly construed. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Attorney, Trial Counselor and Client  Fees; Costs
When the election law lacks a statutory definition of costs either specifically including or excluding attorney's fees, the court can only conclude that the Legislature did not intend to use the term "costs" in other than its usual and familiar sense, which does not include attorney's fees. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Statutes  Construction
The court's task is to apply the law in the manner the Legislature intended as evidenced by the language it used in the statute. If this is unfair, it is a matter for the Legislature to correct, not the court. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Costs
Costs for an election defendant's airfare will be denied when it is for an uncertain amount and no evidence of this expense been provided to the court and when it is an expense he would have incurred anyway, because he would have had to return shortly from Honolulu to take his seat in the Legislature, and because it is an expense he would not have incurred if he had not voluntarily left Chuuk for Honolulu. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001).

Costs
Costs for printing and copying are expenses that traditionally have been included within costs 

[10 FSM Intrm. 222]

that are awarded to prevailing parties. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2001).

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COURT'S OPINION

RICHARD H. BENSON, Temporary Justice, Presiding:

On April 16, 2001, we confirmed the Chuuk State Election Commission's designation of Victor Gouland and Tracy Souleng as winning candidates from Election District One in the March 6, 2001 election for the Chuuk Legislature House of Representatives. Cholymay v. Chuuk State Election Comm'n, 10 FSM Intrm. 145, 158 (Chk. S. Ct. App. 2001). On April 23, 2001, appellees Victor Gouland and Tracy Souleng filed their application for an award of costs in this matter. Appellant Alanso Cholymay has not filed a response or opposition to the appellees' application. We now grant the application in part.

I. Application for Costs

Appellees Gouland and Souleng seek payment of their costs and attorney's fees in this election contest appeal. The application is brought pursuant to the Chuuk election law provision governing the award of costs which provides: "If . . . the election is confirmed by the Court, judgment shall be rendered against the contestants, for costs, in favor of the defendant. . . ." Chk. S.L. 3-95-26, § 136. The election law defines a defendant as "that person whose election or qualification is contested . . . ." Id. § 123. Although, if Cholymay's contest had resulted in his being declared a winning candidate, only one of the two would no longer have been a winning candidate, both Gouland and Souleng may properly be considered defendants under the statute because it is uncertain which of those two Cholymay would have displaced if he had succeeded in being elected.

Gouland and Souleng seek payment of $46 in printing and copying costs and $9,500 in attorney's fees ($100 an hour x 95 hours). There is also a claim of an uncertain amount for Gouland's travel costs to return from Honolulu so that he could hire an attorney for the case. Gouland and Souleng concede that traditionally the costs recoverable against an unsuccessful party do not include attorney's fees unless allowed by statute. They nevertheless contend that, under this case's circumstances, attorney's fees should be awarded as a part of costs. Gouland and Souleng contend that the court should take this step because of the nature of the election law and of an election contest. They contend that the short and complicated time frame set up by the election law required vigilance by the parties, who thus need to obtain learned trial counselors or attorneys to assist them. They also note that such an expedited time frame would normally allow attorneys to charge extra. They further assert that they are "captive defendants," automatically made parties by operation of law because they were certified as winners by the Election Commission and another candidate challenged the certification.

Gouland and Souleng note that attorney's fees are not mentioned anywhere in the election law. They contend that this leaves the court free to fashion its own definition of costs in the context of an election appeal. Gouland and Souleng urge the court to interpret the phrase "costs" to include reasonable attorney's fees because it was left undefined by the Legislature and it thus within the court's sound discretion to do so and that, in light of the circumstances outlined above, should do so.

[10 FSM Intrm. 223]

II. Discussion

Gouland and Souleng are correct to note that the term "costs" traditionally does not include attorney's fees. That has generally been the practice and understanding in Micronesia for many years. In the Trust Territory courts attorney's fees were specifically excluded from the costs that could be awarded. See 6 TTC 407 (later codified at 6 F.S.M.C. 1018). In the FSM Supreme Court the general practice has been that attorneys fees could not be awarded as a part of costs, with one narrow exception. Salik v. U Corp., 4 FSM Intrm. 48, 49-50 (Pon. 1989) (attorney's fees will be awarded as an element of costs only if it is shown that such fees were traceable to unreasonable or vexatious actions of the opposing party). (This is not to be confused with the award of attorney's fees recoverable as a part of damages pursuant to either statute or contract.) The Chuuk Judiciary Act also contains a specific exclusion of attorney's fees from costs that a prevailing party is entitled to be awarded. Chk. S.L. No. 190-08, § 32(2).

Attorney's fees are not a part of recoverable costs under the common law either. 20 Am. Jur. 2d Costs § 72, at 58 (1965) ("The right to recover attorneys' fees from one's opponent in litigation as a part of costs . . . does not exist at common law."). Gouland and Souleng ask us to construe the election statute so as to include attorney fees within the ambit of the term "costs." Generally, statutes and enactments in derogation of the common law, or existing law, are to be strictly construed. Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 122 (Pon. 2001).

The previous existing law in the Trust Territory, the FSM Supreme Court, and the State of Chuuk did not include attorney's fees as a part of costs. And the current election statute does not specifically provide for attorney's fees to be awarded as a part of costs in election contest appeals either. We should therefore be reluctant to depart from the existing law and practice without explicit guidance and direction from the Legislature that it intended that the court could or should award attorney's fees as a part of costs. Therefore, despite the lack of a statutory definition of costs in the election law either specifically including or excluding attorney's fees, we can only conclude that the Legislature did not intend to use the term "costs" in other than its usual and familiar sense, which does not include attorney's fees. Our task is to apply the law in the manner the Legislature intended as evidenced by the language it used in the statute. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., 8 FSM Intrm. 129, 131 (App. 1997) (courts should construe statutes as the legislature intended; legislative intent is best determined by the statute's wording).

No matter how meritorious Gouland's and Souleng's arguments for including fees as a part of costs might be, we are thus unable to do so without statutory authority to that effect. It may be that the Legislature considered as more meritorious opposing considerations, such as not wanting to discourage a losing candidate with a legitimate grievance from pursuing an election contest. Perhaps the Legislature gave it no thought at all. Either way, it did not include attorney's fees as recoverable costs in an election contest. If this is unfair, it is a matter for the Legislature to correct, not the court. Gouland's and Souleng's application for an award of attorney's fees is therefore denied.

Gouland's claim for airfare is also denied. First, it is for an uncertain amount  no specific amount has been claimed, nor has any evidence of this expense been provided to the court. Second, it is an expense he would have incurred anyway, because he would have had to return shortly from Honolulu to take his seat in the Legislature, and it is an expense he would not have incurred if he had not voluntarily left Chuuk for Honolulu. Although Cholymay was required by the statute to name Gouland and Souleng as defendants, neither were required to hire an attorney. Either, or both, could have not hired an attorney and taken their chances that the Election Commission's attorney, who was defending the commission's certification of their election, would adequately protect their certification as winning candidates.

[10 FSM Intrm. 224]

The $46 in costs for printing and copying are expenses that traditionally have been included within costs that are awarded to prevailing parties. See, e.g., Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 (App. 2000); Nena v. Kosrae (III), 6 FSM Intrm. 564, 569-70 (App. 1994). These costs are therefore awarded.

III. Conclusion

Accordingly, judgment in favor of Gouland and Souleng for $46 in costs shall be rendered against the contestant Cholymay. No award of attorney's fees or for Gouland's air fare will be made.

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