FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Etscheit v. Adams, 6 FSM Intrm. 608 (App. 1994)

CAMILLE ETSCHEIT, ESTATE OF ELLA ETSCHEIT JOUBERT, ROBERT ETSCHEIT SR., ESTATE OF LEO ETSCHEIT and ROBERT ETSCHEIT, JR., Individually, and in his Capacity of Administrator,
Petitioners,

vs.

YVETTE ETSCHEIT ADAMS and
RENEE ETSCHEIT VARNER,
Respondents.

__________________________________________

APPEAL CASE NO. P8-1994
CIVIL ACTION NO. 1992-150

ORDER OF DISMISSAL

Submitted: November 16, 1994
Decided: December 16, 1994

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Petitioners:
Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862

For the Respondents:
Fredrick L. Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

*  *  *  *

HEADNOTES

Constitutional Law ─ Certification of Issues
Certified questions are decided by those constitutionally appointed justices who are not disqualified. Etscheit v. Adams, 6 FSM Intrm. 608, 609 (App. 1994).

Constitutional Law ─ Certification of Issues
The Constitution provides that the FSM Supreme Court Appellate Division may decide questions certified from state and local courts, not from the FSM Supreme Court Trial Division. Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

Constitutional Law ─ Certification of Issues; Federalism ─ Abstention and Certification
Certification is normally granted by the court that will be applying the guidance sought to its decision, not yet made, not by the court that is requested to hear the certified question. Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

Appeal and Certiorari ─ Decisions Reviewable
The general rule is that appellate review of a trial court is limited to final orders and judgments. However, certain interlocutory orders involving injunctions, receivers and receiverships, and interlocutory decrees determining rights and liabilities in admiralty cases, are reviewable in the appellate division. In exceptional cases, the extraordinary writs of mandamus or of prohibition may be issued to correct a trial court's decisions before final judgment. Appellate review may also be granted when the trial court has issued an order pursuant to Appellate Rule 5(a). Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

Appeal and Certiorari ─ Decisions Reviewable
"Direct" appeals to the appellate division have been limited to entire cases appealed from administrative agencies decisions. Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

*  *  *  *

COURT'S OPINION

PER CURIAM:

Plaintiffs petition us to have certain issues, already decided by the trial division of this court, certified to the FSM Supreme Court Appellate Division and have dates set for filing briefs and oral argument. Specifically, the petitioners ask that we rule now on the trial court's conclusion of law that an assignment of expectancy to one of the petitioners was invalid under section 4 of article XIII of the FSM Constitution. See Etscheit v. Adams, 6 FSM Intrm. 365, 382, 384 (Pon. 1994). Civil Action No. 1992-150 is still in the pre-trial phase before Justice Amaraich in the trial division. The respondents oppose the petition. We deny the petition because we have no jurisdiction to do as the petitioners ask.

I.

Petitioners assert we have the authority to order this issue certified to the appellate division by applying the reasoning in Bernard's Retail Store & Wholesale v. Johnny, 4 FSM Intrm. 33, 34 (App. 1989) (an article XI, section 8 case) to article XI, section 7 of the Constitution. They also cite past cases in which we have allowed direct appeals.

Certified questions are decided by those constitutionally appointed justices who are not disqualified. Bernard's, 4 FSM Intrm. at 35 (constitutionally appointed justices decide whether to decide certified questions). Therefore, we, as the two remaining constitutionally-appointed FSM Supreme Court justices may decide whether to grant this petition.

II.

We deny the petition for the reasons that follow.

A. Certification of Issues

The Constitution provides that the FSM Supreme Court Appellate Division may decide questions certified from state and local courts. FSM Const. art. XI, § 8. It does not provide for certification of questions from our own trial division to the appellate division. Bernard's involved questions certified from a state court. Its reasoning does not apply to the constitutional provision on appellate review, FSM Const. art. XI, § 7. Furthermore, certification is normally granted by the court that will be applying the guidance sought to its decision, not yet made, not by the court that is requested to hear the certified question.

B. Interlocutory Appeals

Although what we have said suffices to dispose of this argument of the petitioners, we feel it our duty to determine if this petition is properly before us through some other avenue. The general rule is that appellate review of a trial court is limited to final orders and judgments. Melander v. Kosrae, 6 FSM Intrm. 257, 259 (App. 1993); Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992); In re Main, 4 FSM Intrm. 255, 257 (App. 1990). There are few exceptions. Certain interlocutory orders involving injunctions, FSM App. R. 4(a)(1)(B), receivers and receiverships, FSM App. R. 4(a)(1)(C), and interlocutory decrees determining rights and liabilities in admiralty cases, FSM App. R. 4(a)(1)(D), are reviewable in the appellate division. None of these are involved in this petition. In exceptional cases, the extraordinary writs of mandamus or of prohibition may be issued to correct a trial court's decisions before final judgment. See, e.g., Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994); In re Main, 4 FSM Intrm. at 258; FSM App. R. 21. No extraordinary writ is sought, or indicated here.

The only other avenue for appellate review of the trial division's interlocutory decisions is by FSM Appellate Rule 5(a). That Rule requires that before the remaining article XI, section 3 (constitutionally-appointed) justices can decide whether to permit the appeal there must first be an order of the trial division justice stating that he is of the opinion that the issue to be appealed "involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the termination of the litigation." FSM App. R. 5(a). Cf. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 77 (Kos. 1982). There is no such order of the trial justice in this instance.1 We therefore cannot grant appellate review pursuant to Rule 5(a).

C. Other "Direct Appeals"

Petitioners also argue that direct appeals have been granted in the FSM Supreme Court in various other matters. These cases all involved appeals of an entire case from an administrative agency. See, e.g., Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994) (direct appeal involving issue of extreme time sensitivity and of national importance that ultimately would have to be decided by the appellate division allowed from agency decision); Aten v. National Election Comm'r (II), 6 FSM Intrm. 74 (App. 1993) (statute, 9 F.S.M.C. 903, authorized direct appeal); see also Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137 (App. 1993) (denial of direct appeal; review of previous cases where direct appeals allowed from administrative agency decisions). None of these cases are applicable to the petitioners' situation.

III.

Because we have no authority to grant the petition for certification we must deny it.

*  *  *  *