CHUUK STATE SUPREME COURT
TRIAL DIVISION

Cite as Konman v. Esa
11 FSM Intrm. 291 (Chk. S. Ct. Tr. 2002)

[11 FSM Intrm. 291]

LINDA KONMAN,
Plaintiff,

vs.

KISAUO ESA,
Defendant.

CSSC-CA-NO. 48-2001

ORDER

Wanis R. Simina
Associate Justice

Hearing:  December 3, 2002
Decided:  December 11, 2002

APPEARANCES:

For the Plaintiff:	Ben Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

For the Defendant:	Michael Marco
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Default and Default Judgments; Civil Procedure - Notice; Civil Procedure - Service
No service on a defendant of a motion for entry of a default judgment is necessary under the rules, and nothing in the rules requires that notice of hearings on default matters be given to a defaulting defendant.  Konman v. Esa, 11 FSM Intrm. 291, 293-94 (Chk. S. Ct. Tr. 2002).

Civil Procedure - Dismissal; Judgments - Relief from Judgment
After a default judgment has been entered, a motion to dismiss cannot be granted unless the motion to set aside the default is successful.  Konman v. Esa, 11 FSM Intrm. 291, 294 n.2 (Chk. S. Ct. Tr. 2002).

Appellate Review - Notice of Appeal
A notice of appeal from the Chuuk State Supreme Court trial division must be filed with the clerk of the trial division, not with the clerk of the appellate division, no later than 30 days after the entry of the judgment appealed from, as extended by Rule 26(a).  Konman v. Esa, 11 FSM Intrm. 291, 295 & n.5 (Chk. S. Ct. Tr. 2002).

[11 FSM Intrm. 292]

Appellate Review - Stay
The contention - that once a stay is issued the matter falls within the appellate division’s jurisdiction, and the trial court is deprived of all jurisdiction to modify or vacate its stay - cannot be sustained.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
When an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay.  The stay is effective when the court approves the supersedeas bond.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay; Attachment and Execution
When the appellant has yet to offer a supersedeas bond, and the court has yet to approve the bond, the stay has yet to become effective.  Until such time as the appellant offers a supersedeas bond acceptable to the court, there is no stay in effect, and the plaintiff is free to execute on the judgment.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
The trial court retains jurisdiction over the stay, even during the pendency of an appeal.  The only time the trial division loses jurisdiction over the issue is when a stay is denied, which denial permits the appellant to seek a stay from the appellate division.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
Jurisdiction over a stay remains in the trial court until such time as the trial court approves a supersedeas bond.  This is so even after the notice of appeal is filed, and until approval of the bond, whenever that may occur.  By failing to give a bond sufficient to obtain the trial court’s approval, the appellant never obtains his right to a stay.  Only the trial division has jurisdiction, in the first instance, to approve the bond.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
The trial court’s power to order a stay of execution, and by implication to deny a stay, continues throughout the appeal’s pendency, until the appellate division’s mandate issues.  The trial court’s power to grant a stay is invested in the trial court by virtue of its original jurisdiction over the case and continues to reside in the trial court until such time as the court of appeals issues its mandate.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay; Judgments - Alter or Amend Judgment; Judgments - Relief from Judgment
Although the trial court, absent a remand, lacks jurisdiction to vacate or alter its judgment pending appeal, the trial court retains the power throughout the pendency of the appeal to simply preserve the status quo by granting a stay of the judgment.  Konman v. Esa, 11 FSM Intrm. 291, 296 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
An appellant cannot argue that the issuance of a stay would not preserve the status quo when it would permit the appellant to reside in appellee’s property, rent free, and without any obligation to pay rent, until an appellate session can be convened, and the appeal decided; or that a stay of execution that has not yet to come into effect as a result of the appellant’s failure to offer a bond sufficient to protect the plaintiff’s interests pending appeal could permit a continuing trespass.  Konman v. Esa, 11 FSM Intrm. 291, 296-97 (Chk. S. Ct. Tr. 2002).

[11 FSM Intrm. 293]

Appellate Review - Stay; Torts - Trespass
When it is clear that regardless of the probability of appellant’s success on appeal, he cannot demonstrate any right to possession of the property at the current time greater than that of the appellee, and when regardless of any stay of execution and of the offering of any supersedeas bond adequate to obtain the court’s approval, the appellee is currently entitled to possession of her property pending the appeal’s outcome and the appellant is not and must vacate the premises at the earliest possible moment.  Konman v. Esa, 11 FSM Intrm. 291, 297 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
In order for the court to stay execution of a judgment, it is necessary for the defendant to offer a supersedeas bond to the court.  That bond must be in a form, and in a sum sufficient to protect the plaintiff’s interests, in the event that the defendant’s appeal is unsuccessful.  The only supersedeas bond which the court would find sufficient in form and amount, under the circumstances, would be a cash bond in a sum that would cover the premises’s rental value during the defendant’s wrongful occupation thereof, and would also cover any additional damages which plaintiff might prove upon remand from the appellate division.  Konman v. Esa, 11 FSM Intrm. 291, 297 (Chk. S. Ct. Tr. 2002).

Appellate Review - Stay
If no supersedeas bond is deposited with the court as required by its order, no stay shall be considered as having issued, and the plaintiff shall be free to seek enforcement of her judgment against the defendant, according to any lawful means at her disposal.  Konman v. Esa, 11 FSM Intrm. 291, 298 (Chk. S. Ct. Tr. 2002).

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COURT’S OPINION

WANIS R. SIMINA, Associate Justice:

	I.  Introduction

This matter comes before the Court on Plaintiff’s motions, filed on September 9, 2002, seeking to vacate the stay pending appeal issued by this Court ex parte on September 14, 2001, and for an order in aid of judgment seeking enforcement of the Court’s judgment, entered on May 7, 2001 evicting Defendant from the premises owned by the Plaintiff.

This action arose out of the purported agreement between Defendant, being the Mayor of Tolensom Municipality, and Plaintiff whereby Defendant purportedly rented Plaintiff’s residence premises for the sum of $500.00 per month, from and after October 1, 2000.  The complaint was filed and summons was issued on March 12, 2001, and service of the summons and complaint was made on the Defendant on March 13, 2001.

Defendant failed to answer the complaint in a timely manner.  Plaintiff, by motion filed on April 12, 2001, sought a default judgment. The motion was brought on the first day permissible under the rules for entry of default and for the obtaining of a judgment by default.  There is no evidence that the motion for entry of a default judgment was served on the Defendant (none is necessary under the rules), and although a copy of the Notice of Hearing on Plaintiff’s motion was placed in the box for 

[11 FSM Intrm. 293]

Plaintiff’s counselor, for delivery to the Defendant, there is no evidence in the record that the Defendant actually had notice of the hearing on the motion for default judgment.

The hearing on Plaintiff’s motion was noticed for May 22, 2001.  The hearing was actually held, if at all, on or before May 7, 2001.  On that date, the Court entered judgment by default against the Defendant.  Despite the irregularities apparent in noticing the hearing on May 22, 2001, and entering the default judgment some 15 days before that date, there is nothing in the rules which requires that notice of hearings on default matters be given to a defaulting Defendant.  The judgment by default provided for the monetary relief sought by the Plaintiff, and ordered the ejectment of the Defendant from Plaintiff’s residence.

On May 14, 2001, Defendant, through his counselor of record, Mike Marco, timely moved for an order setting aside the default pursuant to CSSC Civil Rule 55(c).  The timing of the motion indicates that the Defendant became quickly aware of the entry of the judgment by default.  Although the motion alleged facts outside the complaint filed by the Plaintiff, no sworn affidavit was filed in support of those factual allegations.  Neither did Defendant submit to the court, together with his motion, any proposed answer or other pleading in opposition to the complaint.

On June 4, 2001, a Motion to Intervene was made by Tolensom Municipality.  The motion specifically denied the allegations of the Defendant, in his motion to set aside the default, that the agreement to lease the Plaintiff’s property was made on the authority, and at the expense, of the Municipality.

After a delay occasioned by the absence of the Defendant from Chuuk State, a hearing was held on Defendant’s motion to set aside the default judgment and to dismiss the complaint, and the motion to intervene, on July 5, 2001.  Finding that the premises is in fact owned by the Plaintiff (a Certificate of Title being attached to the complaint), the Court denied Defendant’s motion to dismiss the complaint.

After hearing from the counselor for Tolensom Municipality, the court found that any agreement which had been made for the rental of Plaintiff’s residence was not authorized by the Municipality, and that therefore the Defendant was the only proper party defendant to the proceeding.  Thereafter, the Court found no adequate grounds to vacate the default judgment, and denied all pending motions.  The Order was entered on August 10, 2001.  In the Order, the Court augmented the damage award made in the judgment by default, by including an award of punitive damages not previously awarded, and an award of attorneys fees, although there is no evidence of the propriety of such a fee award.

Thus, as of August 10, 2001, the default of the Defendant had been taken, judgment by default had been made, and the Defendant had been ordered ejected from the premises.  Assuming the allegations of the complaint are correct, the Defendant had paid for two months of rental of the premises, and had, by the date of the order denying the motion to set aside the default judgment, 

[11 FSM Intrm. 295]

occupied the premises for more than ten (10) months.

On September 10, 2001, Defendant moved the Court for a stay of execution of the judgment pending appeal, pursuant to "Rule 3(a) and Rule 4(b) of the Chuuk State Rules of Appellate Procedure and Rule 62d. of the Chuuk Rules of Civil Procedure . . . ."  The motion stated, in part, that "An appeal is being made on his behalf to the Appellate Division, the notice of the appeal is being filed contemporaneously with this motion."  The Notice of Appeal was improperly filed with the Clerk of the Appellate Division, despite the clear requirements of CSSC Appellate Rule 4(a).

To aggravate matters even further, this Court took it upon itself to review the motion for a stay pending appeal, and to grant the requested stay, without providing the Plaintiff with an opportunity to be heard on the motion.  The motion for a stay pending appeal was granted by this Court, without hearing, on September 14, 2001.  The Defendant neither offered, nor did the Court require, the posting of a supersedeas bond as is required by CSSC Civil Rule 62(d).  The absence of a hearing deprived the Plaintiff of her opportunity to show that a stay pending appeal would cause her great and irreparable harm.

Thus, as of the date of filing of the motions now pending before this Court, the Defendant had occupied the premises of the Plaintiff for more than 23 months, and had only paid for two months rental at $500.00 per month.  The stay pending appeal, ordered without hearing, has deprived the Plaintiff of her residence, and of the rental value of said residence, for almost two full years.

II.  The Motion to Vacate the Stay Pending Appeal

On September 9, 2002, Plaintiff, appearing pro se, brought a "Motion to Set Aside Order Granting Motion to Stay Execution and Enforcement of Judgment; Motion for Order in Aid of Judgment; Motion for Hearing as Soon as Practicable."  The motion was based on the ground that the stay was granted in violation of CSSC Civil Rule 62(d) in that it failed to require the posting of a supersedeas bond, and on the further ground that the Court failed to consider whether the granting of a stay would unduly prejudice the rights of the Plaintiff.

On September 16, Defendant filed his opposition to the motion to vacate the stay, styled as "Defendant’s Motion to Dismiss All Plaintiff’s Motions."  The opposition appears to be based on the ground that the trial court is deprived of jurisdiction over the cause upon the filing of the Notice of Appeal.

The Court scheduled a hearing on Plaintiff’s motions for December 3, 2002.  Both parties appeared through counsel, and argument was had on the motions and the opposition thereto.  Thereafter, the Court took the matter under submission.  For the reasons stated, the Court grants in part, and denies in part, based upon certain conditions, Plaintiff’s motion to vacate.  The Court further denies Plaintiff’s Motion for Order in Aid of Judgment without prejudice, renewal of which will depend upon Defendant’s compliance or non-compliance with the terms of this Order.

[11 FSM Intrm. 296]

III.  The Court Retains Jurisdiction over the Stay

Defendant’s principal contention is that once the stay is issued, and the matter falls within the jurisdiction of the Appellate Division, the trial court is deprived of all jurisdiction to modify or vacate its stay.  This contention cannot be sustained.

First, the stay of execution is yet to be in force.  CSSC Civil Rule 62(d) clearly provides:

(d) Stay Upon Appeal.  When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule.  The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be.  The stay is effective when the supersedeas bond is approved by the court.

(emphasis added).  See, e.g., Walter v. Meippen, 7 FSM Intrm. 515, 519 (Chk. 1996).

The simple fact is, that the Defendant has yet to offer a supersedeas bond, and the Court has yet to approve the bond.  Thus, by the terms of Rule 62(d), the stay has yet to become effective.  Until such time as the Defendant offers a supersedeas bond acceptable to the Court, there is no stay in effect, and the Plaintiff is free to execute on the judgment entered in May, 2001.

More importantly, it is clear from the rule itself, and case law, that the trial court does in fact retain jurisdiction over the stay, even during the pendency of an appeal.  The only time the trial division appears to lose jurisdiction over the issue is when a stay is denied, which denial permits the appellant to seek a stay from the Appellate Division.  Chk. App. R. 8(a).

CSSC Civil Rule 62(d) clearly provides that jurisdiction remains in the trial court until such time as the trial court approves the supersedeas bond.  This is so even after the Notice of Appeal is filed, and until approval of the bond, whenever that may occur.  By failing to give a bond sufficient to obtain the trial court’s approval, the appellant never obtains his right to a stay.  Only the trial division appears to have jurisdiction, in the first instance, to approve the bond.

Furthermore, the power of the trial court to order a stay of execution, and by implication to deny a stay, continues throughout the pendency of the appeal, until the mandate of the Appellate Division issues.  The power of the trial court to grant a stay

is invested in the [trial] court by virtue of its original jurisdiction over the case and continues to reside in the [trial] court until such time as the court of appeals issues its mandate . . . .  Although the [trial] court lacks jurisdiction to vacate or alter its judgment pending appeal, absent a remand, the [trial] court retains the power throughout the pendency of the appeal to simply preserve the status quo by granting a stay of the judgment.

Rakovich v. Wade, 834 F.2d 673, 674 (7th Cir.1987) (citations omitted).

Defendant cannot argue that the issuance of a stay would preserve the status quo, unless the Defendant is willing to contend that the Court is somehow obligated to permit the Defendant to reside in Plaintiff’s property, rent free, and without any obligation to pay rent, until an appellate session can be convened, and the appeal decided.  The Defendant cannot seriously contend that the Court should be compelled to permit a continuing trespass because it has issued a stay of execution which has yet to come into force and effect as a result of the failure of the Defendant to offer, and the Court to 

[11 FSM Intrm. 297]

approve, a bond sufficient to protect the Plaintiff’s interests pending appeal.

IV.  Defendant’s Right to Continued Possession

It is undisputed that the Plaintiff is the owner of the premises in question, a copy of the Certificate of Title so establishing her ownership being attached to the complaint in this action.  While it is disputed whether a relative of the Plaintiff received payment from the account of Tolensom Municipality which was intended to pay for the rental of the premises, resolution of that issue in the Defendant’s favor would only have entitled the Defendant to reside in the premises through September, 2001.  Since no payments have been made other than the $1,000.00 admitted by the Plaintiff, and the $5,000.00 which the Defendant contends was paid to a relative of the Plaintiff, it is clear that regardless of the probability of Defendant’s success on appeal, the Defendant cannot demonstrate any right to possession at the current time, or indeed since October 1, 2001, greater than that of the Plaintiff.  Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 51-52 (App. 1995).

Therefore, regardless of any stay of execution, and any possibility of success by the Defendant on appeal, the Plaintiff is currently entitled to possession of her property pending the outcome of the appeal.  Regardless of the offering of any supersedeas bond adequate to obtain the approval of the Court, the Defendant is not entitled to possession of the subject property, and must vacate the premises at the earliest possible moment.

The Court is very mindful of the current circumstances of the Plaintiff, and of the approach of the Christmas holiday.  At the same time, the Court must be mindful of the fact that the Defendant, rightly or wrongly, has made his home in the subject premises for over two years, and may need time to effect his removal therefrom.  Therefore, the Court will order that Defendant vacate the premises not later than December 31, 2002.

V.  Necessity of an Adequate Bond

In order for this Court to stay execution of the judgment issued in May, 2001, it is necessary for the Defendant to offer a supersedeas bond sufficient to the Court.  Chk. Civ. R. 62(d).  That bond must be in a form, and in a sum sufficient to protect the interests of the Plaintiff, in the event that the Defendant is unsuccessful in his appeal.

It is admitted by Plaintiff that she received $1,000.00 in rent.  It is equally clear that the Defendant has occupied the Plaintiff’s premises, without a written lease, and without payment of any additional rent, for more than 26 months.  Had Defendant paid the rent required under the purported agreement, Plaintiff would have received not less than $13,000.00 in total rent over that 26 month period.

It is also clear to the Court that Defendant’s claim that $5,000.00 in municipal funds of the Tolensom Municipality was improperly paid to a relative of the Plaintiff is not before this Court, and even if true, is a claim of Tolensom Municipality, and not a defense to Plaintiff’s claim that the Defendant personally has unlawfully trespassed on Plaintiff’s property.

The only supersedeas bond which the Court would find sufficient in form and amount, under the circumstances, would be a cash bond in the sum of $15,000.00, which would cover the rental value of the premises during the Defendant’s wrongful occupation thereof, and would also cover any additional damages which Plaintiff might prove upon remand from the Appellate Division.

Now therefore, good cause appearing, it is hereby ordered as follows:

[11 FSM Intrm. 298]

1.  Plaintiff’s Motion to Vacate Stay and Motion for Order in Aid of Judgment is hereby granted in part, and Defendant is ordered to vacate the premises commonly known as "Chonufar #1," and otherwise identified in the Certificate of Title, being document number 5324, issued by the Chuuk State Land Commission on February 8, 2001 as Parcel No. 61968, not later than December 31, 2002.  Failure to so vacate the premises in a timely manner shall be considered contempt of court, and will be punished accordingly.

2.  Plaintiff’s Motion to Vacate Stay is denied in part, on condition that Defendant deposit with the Clerk of the Court, not later than December 31, 2002, the sum of $15,000.00, in cash or by certified or cashier’s check, as a supersedeas bond as required by the provisions of CSSC Civil Rule 62(d).  In the event that Defendant complies with the requirements of this paragraph completely, and in a timely manner, a stay will issue precluding Plaintiff from seeking to enforce that portion of the judgment entered on May 14, 2001 which requires the Defendant to pay money to Plaintiff, until such time as the mandate of the Appellate Division shall issue.

3.  Upon deposit of the aforementioned sum with the Clerk of the Court, the Clerk is ordered to deposit said sum in an interest bearing account with a financial institution in Chuuk State, pending further order of this Court or direction from the Appellate Division.

4.  In the event that no deposit is made as required by this Order, no stay shall be considered as having issued, and Plaintiff shall be free, at any time on or after January 1, 2003, to seek enforcement of her judgment against the Defendant, according to any lawful means at her disposal.

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Footnotes:
1.CSSC Civil Rule 12(a) provides than an answer or other responsive pleading must be filed within thirty (30) days of the service of the summons and complaint.
2. Although not set out in the caption of the motion, Defendant brought a Rule 12(b)(6) motion to dismiss together with the motion to vacate the default. Clearly, after a default judgment has been entered, a motion to dismiss cannot be granted unless the motion to set aside the default is successful.
3. From the reference to the Intervenor in the Order Denying Motion, etc., it appears that the Court had granted the motion to intervene, although there is no specific record stating that fact.
4. To the extent this Order purports to be a modification of the judgment by default, the propriety of the order is an issue which may be raised on appeal.
5. CSSC Appellate Rule 4(a)(1) provides that the Notice of Appeal shall be filed, "with the clerk of the state court Trial Division," not later than 30 days after the entry of the judgment appealed from, as extended by Rule 26(a).
6. The record is silent regarding the circumstances under which Plaintiff’s counsel withdrew from, or abandoned, representation of the Plaintiff.