FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P6-2011
APPEAL CASE NO. P1-2011

KADALINO DAMARLANE, GREGORIO DAMARLANE, BENSIS DAMARLANE, et al.,
Appellants,

vs.

POHNPEI TRANSPORTATION AUTHORITY and STATE OF POHNPEI,
Appellees.
--------------------------------------------
IN RE SANCTION OF DAMARLANE
__________________________________________

OPINION

Argued: June 14, 2012
Decided: August 15, 2012

BEFORE:

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Temporary Justice, FSM Supreme Court*

*Chief Justice, State Court of Yap, Colonia, Yap

APPEARANCES:

For the Appellants: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellees: Ira J. Shifflett, Esq.
Pohnpei Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Standard - Civil Cases - Abuse of Discretion; Civil Procedure - Sanctions
Appeals of Rule 11 sanctions are reviewed under an abuse of discretion standard, using an objective standard rather than assessing an attorney's subjective intent. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 372 (App. 2012).

Civil Procedure - Sanctions
Rule 11 sanctions can be imposed only for violating one of the three elements of Rule 11 - 1) is the document signed, or 2) is it, to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, well grounded in fact and warranted by law, or 3) is it interposed for any improper purpose such as delay or harassment. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 372 (App. 2012).

Civil Procedure - Sanctions
When a paper is signed in violation of Rule 11, the court must impose upon the person who signed it, a represented party, or both, an appropriate sanction. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 372 (App. 2012).

Civil Procedure - Sanctions
The purpose of Rule 11 sanctions is to deter baseless or frivolous filings, and although bad faith is not a necessary element for Rule 11 sanctions, it will subject a party, the party's attorney, or both to Rule 11 sanctions. A good-faith argument that is purely frivolous is also sanctionable. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 372 (App. 2012).

Civil Procedure - Sanctions
Although Rule 11 sanctions cannot be imposed for merely being wrong about the law or having an exaggerated sense of the likelihood of success, the sting of Rule 11 sanctions cannot be avoided under the guise of a pure heart and an empty head. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 373 (App. 2012).

Civil Procedure - Res Judicata
Under the res judicata doctrine, a prior action's final decision on the merits that has been affirmed on appeal, or for which the time to appeal has expired, bars a subsequent action on that same claim or any part thereof, including issues which were not but could have been raised as part of the claim. When the claims are not raised in a second action, but are raised in the original action, res judicata does not apply. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 373 (App. 2012).

Civil Procedure - Res Judicata; Judgments
While the res judicata doctrine formally addresses situations involving prior and subsequent lawsuits, its reasoning and purpose may apply in a lawsuit that has already been adjudged since under the doctrine of merger, all interlocutory orders merge into the final judgment. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 373 (App. 2012).

Civil Procedure; Judgments
When a final judgment is entered, temporary orders cease to be valid, subsisting orders. In general, a trial court's temporary orders issued during the pendency of a proceeding are superseded by the trial court's final order. Temporary orders are always subject to revision or repeal by the final judgment, even if not explicitly mentioned in that judgment. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 373-74 (App. 2012).

Civil Procedure - Res Judicata; Judgments
Interlocutory orders do not survive, but merge in, the final judgment. They are not accorded res judicata effect or final judgment status since interlocutory orders made in the course of an action or proceeding are not binding on the trial court when fashioning the controversy's final adjudication. This should be clear from the operation of FSM Civil Procedure Rule 54(b). Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 374 (App. 2012).

Civil Procedure - Motions; Judgments
A motion to enforce a trial court's previous interlocutory order must be denied when it was not included in the final judgment or explicitly made a separate final judgment under Civil Rule 54(b). Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 374 (App. 2012).

Civil Procedure - Injunctions; Civil Procedure - Res Judicata
Preliminary injunctions do not have a preclusive effect since they are not decisions on the merits. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 374 (App. 2012).

Appellate Review - Dismissal; Judgments
An appellate opinion that merely dismissed the appeal for the lack of jurisdiction could not, and did not, convert any interlocutory order into an enforceable final order. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 374 (App. 2012).

Appellate Review - Decisions Reviewable
A trial court order that stated that if certain conditions occurred it might modify an injunction was not an appealable order under FSM Appellate Rule 4(a)(1)(B) because further proceedings were needed before it became an order modifying an injunction and thus an appealable order. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 375 (App. 2012).

Civil Procedure - Injunctions; Judgments
When a May 1991 interlocutory order and a March 1991 preliminary injunction were neither included in the 1995 final judgment nor made into a separate final judgment, they were overruled, superseded, or made irrelevant by the 1995 amended judgment dissolving the injunction even though the May 17, 1991 order was not explicitly mentioned in the judgment. They ceased to be valid orders. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 375 (App. 2012).

Civil Procedure - Sanctions
Sanctions were proper when, using an objective standard, a reconsideration motion was without merit and the movants could never certify that the motion, ostensibly to enforce no longer valid 1991 interlocutory orders as decisions and orders which were the outcome of the litigation, was well grounded in fact and warranted by existing law or a good faith argument for its extension, especially since the trial court had earlier rejected the same claim. The 1991 interlocutory orders were not decisions and orders which were the litigation's outcome since the litigation's outcome was that the 1991 temporary orders ceased to be valid. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 375 (App. 2012).

Civil Procedure - Sanctions
Sanctions are proper when, even though the plaintiffs may have a valid claim against the defendants, such a claim cannot be enforced by moving to hold the defendants in contempt of an interlocutory order that has ceased to have the force of law and which was issued in a case that not only has been closed for well over a decade but which also resulted in a final judgment, affirmed on appeal, adverse to the plaintiffs. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 375 (App. 2012).

Civil Procedure - Sanctions
The discretion to not impose sanctions when a Rule 11 violation occurs is very limited, and whether a sanction is imposed should not be dependent on what month of the year the Rule 11 motion is decided. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 375 n.3 (App. 2012).

Civil Procedure - Sanctions; Constitutional Law - Due Process - Notice and Hearing
A party's written Rule 11 motion constituted notice that it was seeking sanctions in the form of attorney's fees and the adverse parties' written opposition was their opportunity to be heard and they were heard on the papers. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 376 (App. 2012).

Civil Procedure - Sanctions; Constitutional Law - Due Process - Notice and Hearing
When a sanction is the result of the court's own motion, it must be vacated if the trial court did not give notice that it was making a motion because a trial judge abuses his discretion when, without prior notice and an opportunity to be heard, the sua sponte imposes a Rule 11 sanction on an attorney. The manner in which Rule 11 sanctions are imposed must comport with due process requirements, and, at a minimum, notice and an opportunity to be heard are required. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 376 (App. 2012).

Civil Procedure - Motions; Civil Procedure - Sanctions
When a court (sua sponte) makes its own motion, it must give the parties notice and an opportunity to be heard before it grants or denies its own motion just as when a party makes a motion, the other party generally must be given notice and an opportunity to respond before the court rules. This does not include motions that the rules permit to be made ex parte or without notice, but motions for sanctions always require notice. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 376 & n.4 (App. 2012).

Civil Procedure - Sanctions
A trial court order stating that future sanctions "shall" be in the amount of $150 or greater and shall include contempt proceedings, prejudges the extent and severity of future violations before they occur and will be vacated since a court must hear before it condemns. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 376 (App. 2012).

Civil Procedure - Sanctions
Barring future filings in a case or the filing of new cases in the same matter can be proper Rule 11 sanctions. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 376 (App. 2012).

Civil Procedure - Sanctions; Constitutional Law - Due Process - Vagueness
When the defendants asked the plaintiffs' counsel to withdraw the offending motion or it would seek Rule 11 sanctions and their later Rule 11 motion was precise about what it sought sanctions for, the plaintiffs had the appropriate notice. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 377 (App. 2012).

Civil Procedure - Sanctions; Constitutional Law - Due Process - Vagueness
As for the plaintiffs avoiding future sanctions, the order cannot be too vague since they are barred from filing any papers in Civil Action No. 1990-075 without first obtaining leave of court and have been since December 1995. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 377 (App. 2012).

Civil Procedure - Sanctions
Sanctions of $312.50 in attorney's fees imposed on "Damarlane" were imposed, jointly and severally, on all of the plaintiffs since the trial court began its order with a statement that the plaintiffs, Kadalino Damarlane et al., would be referred to as "Damarlane" throughout the rest of the sanction order and thus the sanction imposed on "Damarlane" was imposed on all of the plaintiffs collectively. Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 366, 377 (App. 2012).

* * * *

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This appeal is from an October 12, 2011 order in Civil Action No. 1990-075, in which the trial court denied reconsideration of its denial of the plaintiffs' motion for contempt proceedings and imposed sanctions on the plaintiffs. The trial court's imposition of $312.50 in sanctions is affirmed, but part of the remaining sanction order is vacated. Our reasons follow.

I. Background

On October 18, 1990, the trial court, in Civil Action No. 1990-075, granted a preliminary injunction, enjoining dredging at Mesenpal, Awak, U. On November 21, 1990, the Pohnpei Department of Health Services issued an earthmoving permit. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 1, 5 (Pon. 1991). On December 29, 1990, the FSM national government issued an earthmoving permit identical to the state's previously issued permit. On January 14, 1991, the trial court, on the Damarlane plaintiffs' motion, issued a preliminary injunction enjoining all government officials and their agents from further activities on the Mesenpal dredge site because no valid FSM earthmoving permit could be issued until the environmental implications of the proposed activities were properly assessed. Id. at 9.

On February 4, 1991, the FSM held an earthmoving hearing, for which it had provided adequate public notice. Pohnpei then moved to modify or vacate the injunction. On February 8, 1991, the trial court, finding that Pohnpei now had a valid earthmoving permit "and that removal of coral from the dredge site would not cause irreparable harm," modified the injunction to allow the activities the permit authorized. Damarlane v. United States, 8 FSM Intrm. 45, 48 (App. 1997).

On March 15, 1991, the trial court, having held a hearing, found that Pohnpei had overstepped the permit's bounds and was violating the January 14, 1991 injunction, and issued another preliminary injunction. On April 15, 1991, Pohnpei moved to modify or vacate the injunction. After a May 16, 1991 hearing, the trial court, on May 17, 1991, issued an order stating that, if certain conditions were fulfilled, it was prepared to modify its March 15, 1991 injunction to permit the earthmoving activities authorized by the FSM Secretary of Human Resources.

The Damarlanes appealed. We dismissed their appeal for lack of jurisdiction. It was an interlocutory appeal that did not fall within the rule permitting appeals from interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions because the trial court order appealed from did not modify or dissolve the injunction, because "the preliminary injunction, issued at plaintiffs' behest on March 15th, remain[ed] undisturbed," and because the trial court order only noted that it might modify the injunction in the future if certain circumstances changed. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992). We held that the order did not, "by any fair reading," alter the preliminary injunction's requirements. Id.

Trial began on July 20, 1995. On August 17, 1995, the trial court, in its findings of fact and conclusions of law, held that the Damarlanes had not proved their case by a preponderance of the evidence. On September 12, 1995, the trial court issued an amended judgment in Pohnpei's favor, dismissing all remaining claims against it and dissolving the March 15, 1991 preliminary injunction within 30 days (effected by an October 10, 1995 amended judgment).

The Damarlanes then moved for leave to amend the complaint to allege loss of riparian rights, to join another party-plaintiff, and to reconsider a pretrial order which had limited takings claims. The trial court denied these motions on December 15, 1995, Damarlane v. United States, 7 FSM Intrm. 350, 352-53 (Pon. 1995), and granted the United States's motion to dismiss, id. at 355, and the FSM's motion for sanctions against the Damarlanes' counsel, id. at 357. The trial court imposed monetary sanctions and ordered that "the plaintiffs shall not file anything further in this case in the trial division without first obtaining leave of the court." Id.

The Damarlanes appealed. On April 15, 1997, we affirmed the trial court "in all respects." Damarlane v. United States, 8 FSM Intrm. 45, 59, reh'g denied, 8 FSM Intrm. 70 (App. 1997).

There was no further action in the case until the Damarlanes, on September 21, 2009, filed a motion for contempt proceedings against Pohnpei Transportation Authority ("PTA") and the State of Pohnpei (collectively "Pohnpei"), and the FSM government. They claimed that the defendants failed to comply with the May 17, 1991 court order, which they asserted required the PTA to remove the causeway it had built at the Mesenpal dredge site. The Pohnpei defendants argued that res judicata barred the Damarlanes from re-litigating these issues. The Damarlanes, citing Damarlane v. Pohnpei Transportation Authority, 5 FSM Intrm. 332, 334 (App. 1992), argued that while the court may have dissolved the March 15, 1991 preliminary injunction, it did not dissolve the May 17, 1991 court order which remained valid and actionable and which required the defendants to remove the causeway.

On December 29, 2010, the trial court ruled that since the May 17, 1991 order was completely contingent upon the dissolved March 15, 1991 preliminary injunction, it had no independent effect, and denied the motion. Damarlane v. Pohnpei Transp. Auth., 17 FSM Intrm. 307, 311 (Pon. 2010). It held that, although "the doctrine of res judicata formally addresses situations involving prior and subsequent lawsuits, its reasoning and purpose apply with equal force where a litigant attempts to revisit an earlier phase of a lawsuit that has already been adjudged." Id. at 312. It also denied Pohnpei's cross-motion for sanctions because it was "the season of holiday cheer," but warned the Damarlanes "that it may not look so charitably upon filings of this type in the future." Id. The Damarlanes timely appealed that order (docketed as Appeal Case No. P1-2011).

On January 10, 2011, the Damarlanes moved for court to clarify and on January 26, 2011, to reconsider the December 29, 2010 order. Pohnpei opposed the reconsideration motion and again moved for sanctions. On February 18, 2011, the Damarlanes opposed the sanctions motion. On October 12, 2011, the trial court denied the Damarlanes' motions because the movants had "provided no new evidence or case law to persuade the court to amend its December 29, 2010 order." Damarlane v. Pohnpei Transp. Auth., 18 FSM Intrm. 52, 56 (Pon. 2011). The trial court granted Pohnpei's motion for sanctions, id. at 57-58, and concluded that the

court therefore orders Damarlane to pay Pohnpei $312.50 in attorney's fees . . . and further orders Damarlane not to file anything further in this case in the trial division without obtaining leave of the court, and gives notice that violation of such order shall subject Damarlane, his counsel, or both to sanctions in the amount of $150 or greater and contempt proceedings.

Id. at 58 (emphasis in original). The Damarlanes timely appealed the October 12, 2011 order (docketed as Appeal Case No. P6-2011).

On February 12, 2012, the court issued a certificate of record and a briefing schedule in Appeal Case No. P6-2011. No certificate of record or briefing schedule was issued in Appeal Case No. P1-2011. And, on May 3, 2012, the clerk issued a notice of oral argument setting oral argument in Appeal Case No. P1-2011 and in Appeal Case No. P6-2011. Before oral argument, we asked the parties to brief us on whether the merits of the trial court's December 29, 2010 order (Appeal Case No. P1-2011) were currently before the appellate court and combined with the P6-2011 appeal; or whether the court should direct the clerk to certify the record in Appeal Case No. P1-2011 and to issue a briefing schedule therefor; and whether the two appeal cases need to be consolidated. The Pohnpei appellees responded that they thought that P1-2011 had been relabelled as P6-2011 and that any issues in P1-2011 that were not briefed in P6-2011 were waived. The Damarlane appellants stated that since the record in the two appeals is the same and since they both arose from Civil Action No. 1990-075, "It seems unnecessary to separately certify the same record; and it seems unnecessary to issue a separate briefing schedule. The two cases can be efficiently and economically disposed of at one hearing, upon briefs presently before this court. These two appeals should be consolidated and heard" together. Appellants' Submission at 3 (June 7, 2012). We accordingly do so.

II. Issue Presented and Standard of Review

The Damarlanes contend that the trial court abused its discretion by imposing Rule 11 sanctions. We review appeals of Rule 11 sanctions under an abuse of discretion standard, using an objective standard rather than assessing an attorney's subjective intent. FSM Dev. Bank v. Adams, 14 FSM Intrm. 234, 246 (App. 2006); Damarlane v. United States, 8 FSM Intrm. 45, 58 (App. 1997); In re Sanction of Berman, 7 FSM Intrm. 654, 656 (App. 1996); see alsoIn re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997); Berman v. Kolonia Town, 6 FSM Intrm. 433, 436 (App. 1994).

III. Analysis

The Damarlanes contend that their reconsideration motion did not seek to relitigate any claim because, they only asked "for enforcement of decisions and orders which were the outcome of the litigation." Appellants' Br. at 8. They also contend that they were not given due process - notice and an opportunity to be heard - because the trial court order was too vague and it did not give specific notice of the conduct alleged to be sanctionable. Id. at 9-10. They also contend that the sanction order is invalid because it was not made promptly after or within a reasonable time of the filing of their reconsideration motion. Id. at 10.

A. Rule 11

Rule 11 sanctions can be imposed only for violating one of the three elements of Rule 11 - 1) is the document signed, or 2) is it, to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, well grounded in fact and warranted by law, or 3) is it interposed for any improper purpose such as delay or harassment. Damarlane v. FSM, 7 FSM Intrm. 383, 384 (Pon. 1996). The trial court imposed sanctions on the second ground. When a paper is signed in violation of Rule 11, the court must impose upon the person who signed it, a represented party, or both, an appropriate sanction. Amayo v. MJ Co., 14 FSM Intrm. 355, 362 (Pon. 2006).

The purpose of Rule 11 sanctions is to deter baseless or frivolous filings, Ehsa v. Pohnpei Port Auth., 14 FSM Intrm. 481, 486 (Pon. 2006), and although bad faith is not a necessary element for Rule 11 sanctions, it will subject a party, the party's attorney, or both to Rule 11 sanctions, Amayo, 14 FSM Intrm. at 363 n.3. A good-faith argument that is purely frivolous is also sanctionable. In re Sanction of Berman, 7 FSM Intrm. 654, 657 (App. 1996). Although Rule 11 sanctions cannot be imposed for merely being wrong about the law or having an exaggerated sense of the likelihood of success, the sting of Rule 11 sanctions cannot be avoided under the guise of a pure heart and an empty head. Amayo, 14 FSM Intrm. at 363.

We thus must determine whether the Damarlanes' reconsideration motion was, to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, well grounded in fact and warranted by law - whether the reconsideration motion, on its merits, was sanctionable. If we decide that it was sanctionable, we will have decided the merits of the reconsideration motion, the original motion, and the P1-2011 appeal as well.

B. Merits of Imposition of Sanctions

The Damarlanes contend that they did not seek to relitigate any earlier claims because they only asked that a prior court order be enforced. They contend that a May 17, 1991 order required that earthmoving permits be issued to remove the berm at the Mesenpal dredge site and that that order is still valid and enforceable and therefore their motion to reconsider was not an attempt to relitigate the matter and therefore cannot result in sanctions.

1. Whether Res Judicata Applies

The contention and holding that res judicata bars the Damarlanes' motions is incorrect and error. Under the res judicata doctrine, a prior action's final decision on the merits which has been affirmed on appeal, or for which the time to appeal has expired, bars a subsequent action on that same claim or any part thereof, including issues which were not but could have been raised as part of the claim. AHPW, Inc. v. Pohnpei, 18 FSM Intrm. 1, 8 (Pon. 2011); Maruwa Shokai Guam, Inc. v. Pyung Hwa 31, 6 FSM Intrm. 238, 241 (Pon. 1993). The Damarlanes' claims were not raised in a second action. They were raised in the original action. Res judicata did not apply.

But this was harmless error. While the res judicata doctrine formally addresses situations involving prior and subsequent lawsuits, its reasoning and purpose may apply in a lawsuit that has already been adjudged,1Berman v. FSM Supreme Court (II), 7 FSM Intrm. 11, 16 (App. 1995), since under the doctrine of merger, all interlocutory orders merge into the final judgment, see, e.g., McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002) (earlier partial summary judgment merged into final judgment); Koppers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 173 (3d Cir. 1998); In re Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996); Trustees of Ind. Univ. v. Aetna Cas. & Sur. Co., 920 F.2d 429, 433 (7th Cir. 1990); Silver v. Mendel, 894 F.2d 598, 601 (3d Cir. 1990); Equal Employment Opportunity Comm'n v. Sears, Roebuck & Co., 839 F.2d 302, 353 n.55 (7th Cir. 1988); Yale v. National Indem. Co., 602 F.2d 642, 647 (4th Cir. 1979); Du Page Forklift Serv., Inc. v. Material Handling Servs., Inc., 744 N.E.2d 845, 853 (Ill. 2001); Kruckenberg v. Ding Masters, Inc., 180 P.3d 895, 899 (Wyo. 2008); cf.Palsis v. Kosrae, 17 FSM Intrm. 236, 244 (App. 2010) (interlocutory order excluding evidence merged with the final judgment).

"[W]hen a final judgment is entered, temporary orders 'cease[] to be valid, subsisting orders.''In general, temporary orders of a trial court issued during the pendency of a proceeding are superseded by the trial court's final order.'" Bank of America v. Stanley, 728 F. Supp. 2d 883, 891 (S.D. Tex. 2010) (trial court's interlocutory safekeeping orders no longer enforceable) (citation omitted). Thus, temporary orders that the Damarlanes rely on, were always "subject to revision or repeal by the final judgment, even if not explicitly mentioned in that judgment. The orders were, in effect, overruled or made irrelevant by the final judgment." Id. at 892. The temporary March 15, 1991 preliminary injunction and the May 17, 1991 order ceased to be valid, subsisting orders.

"Interlocutory orders . . . do not survive, but merge in, the final judgment." Johnson v. Johnson, 674 P.2d 539, 543 (Okla. 1983). They are not accorded res judicata effect or final judgment status since "[i]nterlocutory orders made in the course of an action or proceeding are not binding on the trial court when fashioning the final adjudication of the controversy." Id. at 543 n.7. This should be clear from the operation of FSM Civil Procedure Rule 54(b).

[A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

FSM Civ. R. 54(b). Thus, a motion to enforce a trial court's previous interlocutory order must be denied when it was not included in the final judgment, see, e.g., Stanley, 728 F. Supp. 2d at 891-92; Dirienzo-Gluhareff v. Gluhareff, 865 So. 2d 7, 8 (Fla. Dist. Ct. App. 2004); Skinner v. Skinner, 579 So. 2d 358, 359-60 (Fla. Dist. Ct. App. 1991), unless it has explicitly been made a separate final judgment under Civil Rule 54(b),2see, e.g., Colom v. Colom, 389 N.E.2d 856, 858 (Ohio 1979) ("final judgment should replace all that has transpired before it"); Brooks v. Brooks, 689 N.E.2d 987, 991 (Ohio Ct. App. 1996); Royce v. Royce, 491 N.E.2d 397, 398 (Ohio Clermont County Ct. Com. Pl. 1984).

2. Non-Viability of the 1991 Trial Court Orders

The orders the Damarlanes sought to enforce were interlocutory and did not survive the 1995 amended judgment but were overruled, superseded, or made irrelevant by it, by the dissolution of the preliminary injunction, and by our affirmance of those decisions and ceased to be valid, subsisting orders. Preliminary injunctions do not have a preclusive effect since they are not decisions on the merits. Ruben v. Petewon, 14 FSM Intrm. 177, 183 (Chk. S. Ct. App. 2006). The May 1991 order that was merely related to the March 1991 preliminary injunction was even less a decision on the merits.

Our 1992 opinion that the Damarlanes rely on could not, and did not, convert any interlocutory order into an enforceable final order since it merely dismissed the appeal for the lack of jurisdiction. The Damarlanes point to one sentence therein as either confirming the May 17, 1991 order, or the March 15, 1991 preliminary injunction, or some requirement that the Pohnpei defendants must acquire an earthmoving permit and remove the berms: "Further proceedings are manifestly required." Damarlane, 5 FSM Intrm. at 334. The Damarlanes misread our opinion and take that sentence out of its context. That sentence merely explains that further proceedings would be needed before the interlocutory order appealed from became an appealable order under FSM Appellate Rule 4(a)(1)(B); that is, before it became an order that modified an injunction. Since we lacked jurisdiction to hear that appeal, we had no jurisdiction to consider anything other than the matters that affected our jurisdiction. A trial court order that stated that if certain conditions occurred it might modify an injunction was not an appealable order under FSM Appellate Rule 4(a)(1)(B) because further proceedings were needed before it became an order modifying an injunction and thus an appealable order.

The May 1991 interlocutory order and the March 1991 preliminary injunction were not included in the 1995 final judgment nor were they made into a separate final judgment. They were overruled, superseded, or made irrelevant by the 1995 amended judgment dissolving the injunction even if the May 17, 1991 order was not explicitly mentioned in the judgment. They ceased to be valid orders. The preliminary injunction was never made permanent (although the October 12, 2011 trial court order mistakenly refers to it throughout as a "permanent" injunction, it was not) and was never made into a separate Rule 54(b) judgment. It was dissolved.

Using an objective standard, we conclude that the Damarlanes' reconsideration motion was without merit and they could never certify that the motion, ostensibly to enforce no longer valid 1991 interlocutory orders as "decisions and orders which were the outcome of the litigation," was well grounded in fact and warranted by existing law or a good faith argument for its extension. This is especially true since the trial court, by its December 29, 2010 order, had earlier rejected the same claim. The 1991 interlocutory orders were not "decisions and orders which were the outcome of the litigation." The litigation's outcome was that the 1991 temporary orders ceased to be valid. The sanctions were thus proper.

3. The Damarlanes' Other Remedies

At oral argument, the Damarlanes insisted that it was irrelevant whether the 1991 orders were still valid or enforceable. They asserted that, since FSM regulations and the terms of the Pohnpei defendants' earthmoving permit all require that Pohnpei remove the berms, their claim against the Pohnpei defendants is valid and enforceable, regardless of whether the Civil Action No. 1990-075 orders remain valid or enforceable.

Even though the Damarlanes may have a valid claim against the Pohnpei defendants concerning the berms' removal, an issue we do not decide, such a claim cannot be enforced by moving to hold the Pohnpei defendants in contempt of an interlocutory order that has ceased to have the force of law and which was issued in a case that not only has been closed for well over a decade but which also resulted in a final judgment, affirmed on appeal, adverse to the Damarlanes. In such a case, sanctions are proper. If the Damarlanes' claims about the berm removal are valid, they must seek their relief through means other than the attempted enforcement of an overruled, superseded, and no longer valid interlocutory order in a closed case.

4. The $312.50 Sanction

The Damarlanes' motions may have been made in good faith but they were not well-grounded. Thus, the trial court did not abuse its discretion when it granted Pohnpei's motion to impose Rule 11 sanctions and imposed a $312.50 sanction on the Damarlanes.3 The trial court's grant of its own motion for other sanctions is more problematical.

B. Notice and Opportunity and Promptness

The Damarlanes contend that the trial court sanction violated their due process right to notice and an opportunity to be heard and the requirement that Rule 11 motions be made promptly. Pohnpei filed its February 2, 2011 Rule 11 motion promptly after the January 26, 2011 reconsideration motion that sparked it. Pohnpei's motion constituted (written) notice that it was seeking sanctions in the form of attorney's fees. The Damarlanes' February 14, 2011 written opposition was their opportunity to be heard and they were heard on the papers.

The trial court, however, stated that it "grants Pohnpei's motion for attorney's fees, and grants its own motion to sanction Damarlane's counsel." Damarlane, 18 FSM Intrm. at 54. The court's "own motion" must refer to the part of the order promising to impose sanctions of $150 or more and to institute contempt proceedings for future violations and barring future filings without leave of court since Pohnpei did not request this relief.

Since this sanction is the result of the "court's own motion," it must be vacated because the trial court did not give notice that it was making a motion. A trial judge abuses his discretion when, without prior notice and an opportunity to be heard, he sua sponte imposes a Rule 11 sanction on an attorney. In re Sanction of Michelsen, 8 FSM Intrm. 108, 111 (App. 1997). The manner in which Rule 11 sanctions are imposed must comport with due process requirements. At a minimum, notice and an opportunity to be heard are required. Id. at 110. When a court (sua sponte) makes its own motion, it must give the parties notice and an opportunity to be heard before it grants or denies its own motion just as when a party makes a motion, the other party generally4 must be given notice and an opportunity to respond before the court rules. Heirs of Benjamin v. Heirs of Benjamin, 17 FSM Intrm. 621, 629 (App. 2011); Heirs of George v. Heirs of Dizon, 16 FSM Intrm. 100, 113 (App. 2008); In re Sanction of Woodruff, 10 FSM Intrm. 79, 89 (App. 2001); see alsoAlbert v. O'Sonis, 15 FSM Intrm. 226, 234 (Chk. S. Ct. App. 2007); Wainit v. Weno, 10 FSM Intrm. 601, 606 (Chk. S. Ct. App. 2002); Kama v. Chuuk, 10 FSM Intrm. 593, 598-99 (Chk. S. Ct. App. 2002). The trial court order stating that sanctions "shall" be in the amount of $150 or greater and shall include contempt proceedings, prejudges the extent and severity of future violations before they occur and should probably also be vacated for that reason since a court must hear before it condemns, Heirs of Benjamin, 17 FSM Intrm. at 629; In re Woodruff, 10 FSM Intrm. at 89; Wainit, 10 FSM Intrm. at 606. Accordingly, the part of the trial court order promising to impose sanctions of $150 or more and to institute contempt proceedings is vacated.

We leave undisturbed the part requiring leave of court for future filings by the Damarlane plaintiffs since it was a recitation of the identical, and still valid, December 15, 1995 trial court final order, Damarlane, 7 FSM Intrm. at 357, and not a new sanction order. Barring future filings in a case or the filing of new cases in the same matter can be proper Rule 11 sanctions. See, e.g., Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).

Since the sanctions imposed as a result of the court's sua sponte motion are hereby vacated, we do not need to address the Damarlanes' contention that they could not be imposed because the (court's own October 2011) sanction motion was not made promptly after the alleged January 2011 Rule 11 violation.

C. Vagueness

The Damarlanes also contend that the trial court's statement that "Damarlane's counsel has deliberately distorted the facts, orders, opinions, and judgments of both this court and of the Appellate Division throughout the life and afterlife of this matter," is too vague to give them notice for what the sanctions are being imposed and too vague for them to know what they might incur future liability for since it does not identify which facts, orders, opinions, or judgments they distorted and how. This contention will not detain us for long.

Pohnpei was precise about what it sought sanctions for - it was for filing the motion for reconsideration. Pohnpei even asked the Damarlanes' counsel to withdraw the reconsideration motion or it would seek Rule 11 sanctions, but she refused. Response to Mot. for Reconsideration at 6 (Feb. 2, 2011). The Damarlanes had the appropriate notice there. And, as for the Damarlanes avoiding future sanctions, the order cannot be too vague since they are barred from filing any papers in Civil Action No. 1990-075 without first obtaining leave of court and have been since December 1995.5

D. On Whom Are the Sanctions Imposed?

One other question before us, which we raised on our own during oral argument, is on whom exactly did the trial court impose the sanctions. The order appealed from states that the "court therefore orders Damarlane to pay Pohnpei $312.50 in attorney's fees." Damarlane, 18 FSM Intrm. at 58. Since the trial court began its order with the statement that "[t]his matter comes before the court on attempt by the plaintiffs, Kadalino Damarlane et al. ('Damarlane')," id. at 54, we must conclude that the use of "Damarlane" throughout the order refers to "Damarlane et al." - all of the plaintiffs6 collectively. We therefore conclude that the $312.50 sanctions are imposed, jointly and severally, on all of the plaintiffs. This is sensible since "Damarlane" was also prohibited from filing anything further in Civil Action No. 1990-075 without first obtaining leave of the court and that order necessarily applies to all of the Damarlane plaintiffs.

IV. Conclusion

Accordingly, we affirm the imposition on the Damarlane plaintiffs, jointly and severally, of $312.50 in sanctions, we vacate the decision about future sanctions, and we leave in place the trial court order that no plaintiff can file anything further in Civil Action No. 1990-075 without first obtaining leave of the trial court. The parties shall bear their own costs.

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