FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 1987-077

GREGORIO SALIK,
Plaintiff,

vs.

U CORPORATION,
Defendant.
___________________________________

MEMORANDUM ORDER

Martin Yinug
Associate Justice

Decided: March 11, 2008
Amended: March 24, 2008

APPEARANCES:

For the Defendant: Douglas F. Cushnie, Esq.
P.O. Box 949
Saipan, MP 96950

For the Non-Movant: Fredy Perman, pro se (Fredy Perman)
1809 Makik St.
Honolulu, Hawaii 96822

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HEADNOTES

Debtors' and Creditors' Rights  Order in Aid of Judgment; Judgments

An order in aid of judgment is not appropriate when the prevailing party seeks an order evicting an alleged successor-in-interest and non-party because an order in aid of judgment is only appropriate when seeking satisfaction of a money judgment and the matter does not involve a money judgment. Salik v. U Corp., 15 FSM Intrm. 534, 537 (Pon. 2008).

Attachment and Execution; Debtors' and Creditors' Rights  Order in Aid of Judgment

The process to enforce a judgment for the payment of money may be a writ of execution or an order in aid of judgment. Salik v. U Corp., 15 FSM Intrm. 534, 537 (Pon. 2008).

Judgments; Property

A judgment affecting an interest in land becomes enforceable, by registering the judgment with the appropriate land authority. Salik v. U Corp., 15 FSM Intrm. 534, 537 (Pon. 2008).

Attachment and Execution

Judgments can be enforced in any manner known to American common law or common in American courts. Salik v. U Corp., 15 FSM Intrm. 534, 538 (Pon. 2008).

Civil Procedure; Judgments

An option for enforcing a judgment as provided by statute is the filing of a new civil action based on the judgment. This option is most appropriate avenue and is likely to lead to an efficient and just resolution when the earlier judgment dismissed claims raised by the plaintiff in connection with a land use agreement he had entered into with the defendant and the defendant, some two decades later, seeks to use this judgment to prevent the others, who are not parties to the action and seemingly not involved in the underlying dispute until recently, from using land that may or may not be subject to the judgment and a dispute clearly exists as to whether the other should be deprived of using the land in dispute even if that land is subject to the judgment because new evidence is needed to resolve this dispute between the defendant and the other. Salik v. U Corp., 15 FSM Intrm. 534, 538 (Pon. 2008).

Judgments

When the prevailing party's proposed form of judgment includes matters that are tantamount to new findings of fact not found anywhere in the former justice's oral findings and conclusions, the court will decline to enter the submitted proposed form of judgment. Salik v. U Corp., 15 FSM Intrm. 534, 538 (Pon. 2008).

Judgments

The court is required to find the facts specially and state its conclusions of law thereon but is not required to be reduce findings and conclusions to writing. A justice is under no obligation to reduce his findings and conclusions to writing so long as he stated the findings and conclusions orally in open court. Salik v. U Corp., 15 FSM Intrm. 534, 538 (Pon. 2008).

Courts  Judges; Judgments  Alter or Amend Judgment

A party may seek the addition of supplemental findings to a judgment within ten days of the judgment being entered. Such action should only be taken by the judge who presided over the proceedings and who entered the judgment and while the facts underlying the proceedings are fresh within the presiding judge's mind. A motion for amended judgment or supplemental findings under Rule 52(b), nearly two decades after entry of judgment and with a new presiding judge, is untimely and inappropriate. Salik v. U Corp., 15 FSM Intrm. 534, 539 (Pon. 2008).

Civil Procedure  New Trial; Courts  Judges

If by reason of the disability of the judge before whom an action was been tried, the judge is unable to perform the court's duties after findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties unless the other judge is satisfied that such other judge cannot perform those duties because such other judge did not preside at the trial or for any other reason the other judge may in his or her discretion grant a new trial. Salik v. U Corp., 15 FSM Intrm. 534, 539 (Pon. 2008).

Civil Procedure; Courts  Judges

When interpreting FSM Civil Rule 63 and applying it to a matter, it is appropriate to consider the treatment of similar rules of procedure as they are found in American jurisdictions. Salik v. U Corp., 15 FSM Intrm. 534, 539 (Pon. 2008).

Courts  Judges; Judgments

A successor judge may not make findings of fact and conclusions of law and enter judgment solely upon the record developed by his predecessor except upon agreement of the parties, and a second judge is prohibited from making factual determinations as to a first judge's intent when he interprets an order issued by the first judge. Salik v. U Corp., 15 FSM Intrm. 534, 539 (Pon. 2008).

Civil Procedure  Joinder and Severance; Civil Procedure  Parties

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Salik v. U Corp., 15 FSM Intrm. 534, 540 (Pon. 2008).

Civil Procedure  Joinder and Severance

Rule 19(a) provides two circumstances under which a person can be joined as a party to an action: 1) if in the person's absence complete relief cannot be accorded among those already parties and 2) if the person claims an interest relating to the subject of the action. Salik v. U Corp., 15 FSM Intrm. 534, 540 (Pon. 2008).

Civil Procedure  Joinder and Severance; Civil Procedure  Parties

When the court is not convinced that complete relief under the original judgment cannot be afforded the defendant without joining non-parties as parties plaintiff; when filing a new civil action based upon the judgment is an available option and more properly suited to this situation involving a third person who was not, under any theory advanced, connected with the action during its first decade of litigation; when it is unclear whether the non-parties are claiming an interest in the land that is subject to the action and the action is not the proper forum for making such a determination; there is no need to join the non-parties as parties plaintiff in a post-judgment matter and the court will continue the action by the original plaintiff as explicitly provided for by Rule 25(c). Salik v. U Corp., 15 FSM Intrm. 534, 540 (Pon. 2008).

Civil Procedure  Joinder and Severance; Civil Procedure  Motions

A motion to join non-parties is procedurally defective when there is no certification that it has been served upon the plaintiff, as required, and when there is no certification that the defendant sought the plaintiff's acquiescence, as required, to joining the non-parties as plaintiffs before so moving the court. Salik v. U Corp., 15 FSM Intrm. 534, 540 (Pon. 2008).

Civil Procedure  Motions; Judgments  Alter or Amend Judgment

A letter that does not certify that it has been served upon the plaintiff as required and that does not certify that the defendant sought the plaintiff's acquiescence, as required, is procedurally deficient because the court will treat the letter as a motion for amended judgment and/or supplemental findings. Salik v. U Corp., 15 FSM Intrm. 534, 540 (Pon. 2008).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

I. Introduction

Former Chief Justice Edward C. King entered judgment in this matter in favor of Defendant U Corporation on all claims on October 18, 1988. Subsequent to entering the judgment, Chief Justice King resigned from the Court. On April 18, 2006, the undersigned was assigned to preside over any post-judgment issues in this case.

The Court views this post-judgment matter as currently having three unresolved issues. First, on October 4,2005, U Corporation filed a Motion for Order in Aid of Judgment. Second, on February 15, 2007, U Corporation requested the Court to enter a memorandum decision reflecting factual findings that former Chief Justice King made orally in open court on October 7, 1988. U Corporation has, at the Court's request, submitted a proposed form of judgment to be entered in lieu of a memorandum decision. Finally, U Corporation has submitted a Motion to Join Parties Plaintiff, requesting the Court to add Fredy Perman and a One Lih Latorres Perman as plaintiffs in this matter.

II. U Corporation's Motion for Order in Aid of Judgment

Judgment in this matter dismissed all of Plaintiff Gregorio Salik's claims. In its motion for order in aid of judgment, U Corporation seeks the following relief:

Comes now U Corporation, defendant in this action and moves this court for its order in aid of judgment requiring Fredy Perman, successor in interest to Gregorio Salik, to vacate the premises under lease to U Corporation as provided in the judgment entered herein October 18, 1988, based upon the court's findings and conclusions delivered in open court October 7, 1988.

In the memorandum of points and authorities accompanying its motion, U Corporation requests the Court "to enforce the provisions of the judgment against Fredy Perman by enjoining any further construction on or over the property and ordering him to remove all items placed by him on, over or under said property."

The motion is initially problematic in that it seeks enforcement of a judgment against a non-party. U Corporation has recently moved to join Fredy Perman as a plaintiff in this matter, and the Court is cognizant of the circumstances surrounding this request. However, Mr. Perman is presently not a party and most certainly was not a party in this matter in October 2005 when U Corporation filed its motion for order in aid of judgment.

Furthermore, an order in aid of judgment is not appropriate in light of what U Corporation is seeking. "The process to enforce a judgment for the payment of money may be a writ of execution or an order in aid of judgment, as provided in sections 1405 through 1415 of this chapter." 6 F.S.M.C. 1401 (emphasis added). "At any time after a finding for the payment of money by one party to another and before any judgment based thereon has been satisfied in full, either party may apply to the Court for an order in aid of judgment." 6 F.S.M.C. 1409 (emphasis added). It follows that an order in aid of judgment is only appropriate when seeking satisfaction of a money judgment. See Kama v. Chuuk, 9 FSM Intrm. 496, 498 (Chk. S. Ct. Tr. 1999). The present matter does not involve a money judgment.

U Corporation cites both 6 F.S.M.C. 1402 and 6 F.S.M.C. 1404 as basis for its motion. Section 1402 speaks to the process by which a judgment affecting an interest in land becomes enforceable, namely by registering the judgment with the appropriate land authority. U Corporation has not requested the Court to register the judgment nor has it indicated that the judgment is not already registered with the appropriate land authority. Section 1404 provides three other methods the Court may utilize to enforce a judgment if it "deems that justice requires" such action. The first option is for the Court to take possession of the property in dispute and appoint a receiver to dispose of the property in accordance with the judgment. U Corporation has not requested such action and has nonetheless failed to demonstrate that justice requires such a course of action. Section 1404 also provides that judgments can be enforced in any manner known to American common law or common in American courts. U Corporation has not provided the Court authority suggesting that the relief being sought against Mr. Perman is appropriate under American common law or common in American courts.

The remaining option for enforcing a judgment as provided by Section 1404 is the filing of a new civil action based on the judgment. This option seems most appropriate in the current situation and is likely to lead to an efficient and just resolution of the conflict underlying U Corporation's motion for order in aid of judgment. The judgment in this case dismissed claims raised by Gregorio Salik in connection with a land use agreement he entered into with U Corporation. U Corporation, some two decades later, now seeks to use this judgment to prevent the Permans, who are not parties to this action and seemingly not involved in the underlying dispute until recently, from using land that may or may not be subject to the judgment. U Corporation and the Permans are clearly not in agreement as to whether the land in dispute is part of the parcel of land implicated in the judgment in this matter. Furthermore, a dispute clearly exists as to whether Mr. Perman should be deprived of using the land in dispute even if that land is subject to the judgment in this matter. The Court does not read former Chief Justice King's oral findings as addressing these issues between U Corporation and the Permans. In sum, it seems that new evidence is needed to resolve this dispute between U Corporation and Mr. Perman, and a new civil action is the most appropriate avenue for such resolution.

For these reasons, U Corporation's motion for order in aid of judgment is denied.

III. U Corporation's Request for Memorandum Decision

U Corporation has requested the Court to enter a memorandum decision based upon the findings of fact and conclusions of law made orally by former Chief Justice King in open court on October 7, 1988. U Corporation has provided to the Court a transcript of the October 7, 1988 proceedings, which is inclusive of former Chief Justice King's oral findings and conclusions. On October 7, 1988, former Chief Justice King directed U Corporation's counsel to prepare and submit a proposed form of judgment. On August 9, 2007, the Court renewed the request to U Corporation to submit a proposed form of judgment. The proposed form of judgment submitted by U Corporation includes matters that are tantamount to new findings of fact not found anywhere in former Chief Justice King's oral findings. Accordingly, the Court declines to enter the proposed form of judgment submitted by U Corporation.

The Court also declines to enter a memorandum decision. The Court is cognizant that on October 7, 1988, former Chief Justice King announced his intent to enter a memorandum decision. Nonetheless, it is clear that he did not do so.

Former Chief Justice King's judgment entered on October 18, 1988, complies with the requirements of FSM Civ. R. 52(a), which requires that the court "shall find the facts specially and state its conclusions of law thereon" but does not require findings and conclusions to be reduced to writing. Furthermore, Rule 52(a) explicitly contemplates entry of judgment without an accompanying memorandum decision when it states that "[i]f an opinion or memorandum decision is filed, it will be . . . ." Former Chief Justice King was under no obligation to reduce his findings and conclusions to writing so long as he stated the findings and conclusions orally in open court. While U Corporation would like the Court to view the absence of a memorandum decision as a clerical oversight or unfinished business, the Court has no choice but to accept that former Chief Justice King consciously chose to forgo entering a memorandum decision in favor of explicitly referencing his oral findings in his judgment. To enter a memorandum decision almost twenty years later would be tantamount to replacing former Chief Justice King's discretion in this regard with that of the undersigned and such a course would be imprudent given that former Chief Justice King presided over the trial, heard and weighed the evidence and ultimately issued the judgment. Indeed, it is this consideration that is embodied in FSM Civil Rules 52(b) and 59(e), which provide means for a party to seek the addition of supplemental findings to a judgment within ten days of the judgment being entered. The requirement that a Rule 52(b) motion be made within ten days evidences that such action should only be taken by the judge who presided over the proceedings and who entered the judgment and while the facts underlying the proceedings are fresh within the presiding judge's mind. U Corporation's request, for what is essentially a motion for amended judgment and/or supplemental findings under Rule 52(b), nearly two decades after entry of judgment and with a new presiding judge is untimely and inappropriate. Cf. FSM v. National Offshore Tuna Fisheries Association of Japan, 10 FSM Intrm. 169, 172 (Chk. 2001) (letter from unrepresented party was deemed to constitute a pleading).

Irrespective of the tardiness of U Corporation's Rule 52(b) motion, the Court does not have the authority to afford U Corporation the relief it has requested. Rule 63 of the FSM Rules of Civil Procedure addresses the powers of successor judges:

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that such other judge cannot perform those duties because such other judge did not preside at the trial or for any other reason such other judge may in his or her discretion grant a new trial.

In interpreting FSM Civ. R. 63 and applying it to this matter, it is appropriate to consider the treatment of similar rules of procedure as they are found in American jurisdictions. See Chuuk v. Davis, 13 FSM Intrm. 178, 185-86 (App. 2005); Laion v. FSM, 1 FSM Intrm. 503, 517 n.7 (App. 1984); Andohn v. FSM, 1 FSM Intrm. 433 (App. 1984).

In the case of In re Elwell, 670 P.2d 822 (Haw. 1983), the judge retired after presiding over a probate hearing but before entering findings of fact and conclusions of law. The successor judge entered findings of fact and conclusions of law. The Hawaii Supreme Court interpreted Rule 63 of the Hawaii Rules of Civil Procedure, substantively indistinguishable from FSM Civ. R. 63, to encompass resignation within the contextual meaning of "disability." Furthermore, the Hawaii Supreme Court reversed the successor judge and held that he was not authorized to enter findings and conclusions where he did not preside over the hearing. See also Miller v. Heirs of Hiwauli, 716 P.2d 161 (Haw. 1986); Pritchard v. Haliburton, 717 P.2d 78 (N.M. Ct. App. 1986) (Rule 63 of the New Mexico Rules of Civil Procedure does not allow a successor judge to enter findings and conclusions when previous judge presided over workers' compensation hearing prior to retirement).

In Ten-O-Win Amusement Co. v. Casino Theatre, 2 F.R.D. 242 (N.D. Cal. 1942), the district court judge signed and filed the judgment but passed away before findings of fact and conclusions of law were entered. The successor judge interpreted Rule 63, F.R.C.P., substantively indistinguishable from FSM Civ. R. 63, as denying him the authority to enter findings of fact and conclusions of law under these circumstances. In Bell v. Great Lakes Container Corporation, 702 P.2d 387, 392 (Okla. Ct. App. 1985), the appellate court held that "a successor judge may not make findings of fact and conclusions of law and enter judgment solely upon the record developed by his predecessor except upon agreement of the parties." In Moon v. Platte Valley Bank, 634 P.2d 1036, 1037 (Colo. Ct. App. 1981), the appellate court held that a second judge is prohibited from making factual determinations as to a first judge's intent when he interprets an order issued by the first judge.

This Court adopts the rationale set forth by the preceding American cases and, accordingly, is prohibited from granting U Corporation the relief it has requested.

IV. U Corporation's Motion to Join Parties Plaintiff

U Corporation cites both Rules 19(a) and 25(c) of the FSM Civil Rules of Procedure as independent basis for joining Fredy Perman and a One Lih Latorres Perman as plaintiffs in this post-judgment matter. Defendant submits that application of Rule 25(c) is preferable and more suited to this matter. Rule 25(c) states, in relevant part: "In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party." Rule 19(a) provides two circumstances under which a person can be joined as a party to an action: (1) if in the person's absence complete relief cannot be accorded among those already parties and (2) if the person claims an interest relating to the subject of the action. The Court is not convinced that complete relief under the October 18, 1988 judgment cannot be afforded U Corporation without joining the Permans. As noted above, filing a new civil action based upon the judgment is an available option and more properly suited to this situation involving a third person who was not, under any theory advanced, connected with this action during its first decade of litigation. Furthermore, it is unclear whether the Permans are claiming an interest in the land that is subject to this action, and this action is not the proper forum for making such a determination. In sum, there is no need to join the Permans in this post-judgment matter. U Corporation's motion to join parties plaintiff is denied and the Court chooses to continue this action by the original plaintiff as explicitly provided for by Rule 25(c). Phillip v. Moses, 10 FSM Intrm. 540, 545 (Chk. S. Ct. App. 2002) (court has discretion to refuse to join a new party at a late stage of the litigation).

V. Conclusion

U Corporation's motion for order in aid of judgment is denied. U Corporation's request to enter a memorandum decision or its proposed form of judgment is denied. U Corporation's motion to join parties plaintiff is denied.

As a final housekeeping matter, the undersigned hereby directs the Clerk of Courts to send to the last known address for Plaintiff Gregory Salik and/or his counsel of record copies of the following documents that appear to have not been served upon him:

•	All correspondence in the Court file to and from the Court, the parties, the parties' counsel and Fredy Perman dated anytime subsequent to 1989
•	Opposition to Motion for Order in Aid of Judgment filed by Fredy Perman
•	Order of Recusal and Reassignment
•	Defendant's Motion to Join Parties Plaintiff and accompanying Memorandum

U Corporation's motion to join the Permans is procedurally defective as there is no certification that it has been served upon Plaintiff Gregorio Salik, as required by FSM Civ. R. 5(d). Furthermore, there is no certification that U Corporation sought Plaintiff Salik's acquiescence to joining the Permans before so moving the Court as required by FSM Civ. R. 6(d). Additionally, U Corporation's February 15, 2007 letter is procedurally deficient in these same respects in that this Court treats the letter as a motion for amended judgment and/or supplemental findings pursuant to FSM Civ. R. 52(b). National Offshore Tuna Fisheries Association of Japan, 10 FSM Intrm. at 172. While these motions were denied for independent, substantive reasons, all parties and interested persons are hereby put on notice to insure compliance with FSM Civil Rules 5 and 6 at all times.

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