dissenting:
I
This case, filed eleven years ago, is the oldest case pending in the Commonwealth courts. It originated in the Commonwealth Trial Court, which was renamed “Superior Court” in 1989. It was appealed to the Appellate Division of the U.S. District Court (“Appellate Division”),13 which was replaced by the Commonwealth Supreme Court, also in 1989. It was then appealed to the Ninth Circuit Court of Appeals14 and, finally, to the U.S. Supreme Court.
The case was erroneously remanded back to the Superior Court through the Appellate Division, after the Appellate Division had lost jurisdiction due to the establishment of the Commonwealth Supreme Court. At our request, the Ninth Circuit rerouted the remand order through the Commonwealth Supreme Court and, through our mandate, the Superior Court regained proper jurisdiction.
After receiving the mandate from us, the Superior Court entered judgment and issued a writ of possession in favor of Wabol. This appeal followed. Transamerica has vacated the subject land, which has remained idle for over a year.
Appellants Philippine Goods and Transamerica15 assert that the Superior Court should have entertained the *320issue of unjust enrichment prior to entering its judgment on remand.
II
We are asked to determine first, whether the Superior Court erred by denying Transamerica’s request for a hearing and consideration of the issue of restitution pursuant to the opinion of the Appellate Division. Second, we are asked to consider whether the Superior Court should have applied the statutory remedies contained in PL 8-32.16
in
Transamerica’s request for a hearing on the issue of unjust enrichment was not based on the pleadings or the record before the Trial Court. The parties originally submitted their arguments to the Trial Court in a summary judgment proceeding. There was no issue of fact in dispute and the Trial Court entered judgment in favor of Philippine Goods, noting that improvements on the land had been made by Transamerica. On appeal to the Appellate Division, the issue of restitution was neither raised nor argued. However, that court noted that the appellees had made improvements on the land, and stated that “[o]n remand, the court should determine the amount, if any, of payment [the] appellees should receive from the appellants in order to prevent unjust enrichment for those additions.”17
Transamerica never asked for restitution during the eleven-year pendency of this action. Instead, the record shows that it executed a new lease with Wabol, contemplating that, if Philippine Goods did not prevail on appeal, the new lease would replace the old lease and Transamerica would remain in possession of the land as a lessee.
The record shows that a lump-sum rental payment on the new lease was to have been made at a time subsequent to the lease’s execution. When Transamerica eventually tendered the rent, Wabol refused to accept it, thus preventing the new lease from going into effect. As a result, Transamerica sued Wabol in a separate action to enforce the new lease.18 The Superior Court ruled in favor of Wabol and declared the new lease to be unenforceable.19 At that point Transamerica found itself without a lease and, in the present case, without a claim for restitution pleaded.
Citing the opinion of the Appellate Division and PL 8-32, Transamerica proceeded to argue to the Superior Court on remand in the present case that, based on the Appellate Division’s opinion and the new Commonwealth statute, it was entitled to a hearing on restitution. The Superior Court disagreed and denied the request for a hearing. The analysis below shows that the Superior Court did not err in denying Transamerica’s request for a hearing, or in declining to apply PL 8-32.
1. The Opinion of the Appellate Division
The Appellate Division’s opinion states that the Trial Court “should” determine if any unjust enrichment can be avoided. The Superior Court did not read the opinion as mandating the making of such a determination. It interpreted the word “should” as permissive, not mandatory. The question before us now is whether the Superior Court erred in its interpretation of the Appellate Division’s opinion. I do not think that it did.
The Superior Court’s interpretation is consistent with the ordinary meaning of the word “should.” The word “should” means “usually no more than an obligation of propriety or expediency, or a moral obligation . . . . [I]t does not ordinarily express certainty as ‘will’ sometimes does.”20 In short, the Appellate Division urged the Trial Court to make a determination, but, by using permissive language, it left the decision whether to do so within the sound discretion of the Trial Court.
In Loren v. E’Saipan Motors, Inc.,21 we recognized two relevant and significant points. First, “the appellate court was specific as to what the lower court was to do on remand.”22 Second, it was “not a case where the *321appellate court left discretion to the lower court.”23 These two aspects of Loren make it distinguishable from the case at bar.
Here, the Appellate Division was not as precise in its instructions to the trial court as the appellate court was in Loren. Most importantly, the Appellate Division in the present case left discretion to the lower court. If it had stated that the trial court “shall,” “must” or “is directed” to adjudicate a claim of unjust enrichment, the trial court certainly would have had no choice but to conduct such an adjudication. However, that is not what happened.
With respect to the Superior Court’s exercise of its discretion, the record shows that the court was not only aware of the exceptionally long pendency of this case, but also that permitting Transamerica to raise a claim for restitution at this stage of the proceedings would have been unreasonable and caused further delay. In denying the motion for hearing, the trial court stated: “This case is here now going on 10 years . . . before the parties die ... let them see the fruits of their litigation.”24 Under these circumstances, the trial court did not err or abuse its discretion in not granting Transamerica’s request for a hearing.
2. PL 8-32
PL 8-32 mandates that, when a court determines that a real property transaction is void ab initio under Article XII,
the court shall award an equitable adjustment to any person directly and adversely affected by the judgment who loses possession of or loses any interest in real property as a direct result of the judgment.
The equitable adjustment shall take the form of . . . money . . . and shall be incorporated into the court’s final judgment or order.25
The statute applies retroactively to “all cases . . . excepting those cases which have been reduced to final judgment before October 29, 1993. ”26 The statute does not define “final judgment.”
The dispositive issue is when the judgment in the present case became final.27 To determine this question, we must first define the term “final judgment” as used in 2 CMC § 4951(e), the statute’s retroactivity provision.
The trial court held that the judgment became final in 1992 when the U.S. Supreme Court denied the appellants’ petition for a writ of certiorari.28 This holding is not in error.
A reading of the entire statute (PL 8-32) shows that the legislature used the term “final judgment” in different sections to convey two different meanings. The two meanings correspond to two commonly recognized but distinct uses of that term.
First, “final judgment” may be used to identify a judgment of the trial court that is final for purposes of appeal. See Commonwealth v. Hasinto, 1 N.M.I. 377, 380-83 (1990). For example, in 2 CMC § 4951(a), the statute requires that equitable adjustment be in the form of a monetary award to be incorporated into the court’s “final judgment.” In this context, “final judgment” means the judgment of the trial court, because an equitable adjustment is initially made at the trial court level. Such a judgment is subject to appeal.
Second, “final judgment” may be used to describe the judgment in a case that has reached the court of last resort and can no longer be appealed. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6, 93 L. Ed. 2d 649, 657 n.6 (1987) (“By ‘final,’ we mean a case in which a judgment... has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied”). Here, this is the meaning the legislature clearly intended in 2 CMC §§ 4973(e)29 and 4982(c),30 *322where the statute specifies “final judgment, not subject to further appeal." (Emphasis added.)
In 2 CMC § 4951(e), the retroactivity provision, the legislature did not specify whether “final judgment” refers to a judgment of the trial court that is final for purposes of appeal, or to a judgment that is not subject to any further review on appeal. However, the fact that this section pertains to the statute’s “retroactive effect” makes it similar to Griffith, supra. In Griffith, the U.S. Supreme Court dealt with the retroactive application of its decisions to cases which are not “final.” The term “final judgment” was there defined as not subject to further appellate review.31 Likewise, when used in the context of the retroactive effect of a statute, “final judgment” here means not subject to further appeal.
The present case went from the Trial Court to the Appellate Division to the Ninth Circuit and, finally, to the U.S. Supreme Court on a petition for a writ of certiorari. Under the above definition, the judgment became final, for purposes of 2 CMC § 4951(e), in 1992 when the U.S. Supreme Court declined to review it.
Transamerica argues that, because this case was remanded for further proceedings, it will not be final until the conclusion of the additional proceedings. This argument has no merit because the Appellate Division’s instructions were precatory rather than mandatory. Because the language of the judgment is precatory, and the trial court exercised its discretion not to hold further hearings, there remain no additional proceedings.
In conclusion, PL 8-32 became effective in October 1993. It does not apply to cases that were reduced to final judgment prior to October 1993. As discussed above, the instant case became final in 1992. The Superior Court, therefore, did not err in declining to apply PL 8-32.
For the above reasons, I would affirm the judgment of the Superior Court.
See Wabol v. Muna, 2 CR 963 (D.N.M.I. App. Div. 1987).
See Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir. 1990) (affirming the Appellate Division in all respects and remanding for further proceedings).
The appellants hereafter will be referred to collectively as “Transamerica,” except when one is referred to individually. Transamerica, the sublessee of Philippine Goods, occupied the land prior to the return of the property to Wabol.
Act of Oct. 29, 1993, PL 8-32 (codified at 2 CMC § 4941 et seq.).
Wabol v. Muna, 2 CR 963, 981 (D.N.M.I. App. Div. 1987) (emphasis added).
See Transamerica v. Wabol, Civ. No. 93-0441 (N.M.I. Super. Ct. filed Mar. 30, 1993).
See id. (N.M.I. Super. Ct. Dec. 1, 1994) (summary judgment order), appeal docketed, App. No. 94-048 (N.M.I. Sup. Ct. Dec. 21, 1994).
Black’s Law Dictionary 1379 (6th ed. 1990).
1 N.M.I. 133 (1990).
Id. at 138.
Id.
See, e.g., Transcript of Plaintiffs Motion for Writ of Possession and Defendants’ Motions for Stay Pending Appeal at 42, Wabol v. Transamerica, Civ. No. 84-0397 (N.M.I. Super. Ct. May 18, 1994).
2 CMC § 4951(a).
Id. § 4951(e) (emphasis added).
Because PL 8-32 is inapplicable in this case, it is not necessary to address its constitutionality.
See Transamerica v. Wabol, Civ. No. 93-0441 (N.M.I. Super. Ct. Dec. 1, 1994) (summary judgment order at 2).
This section provides: “The provisions of this article shall apply to all real property transactions involving corporations . . . and shall govern all proceedings in which a final judgment, not subject to further appeal, has not been entered prior to October 29, 1993.” 2 CMC § 4973(e).
This section provides: “The provisions of this section shall apply to all real property transactions . . . and shall govern in all proceedings in which a final judgment, not subject to further appeal, has not been entered prior to October 29, *3221993.” 2 CMC § 4982(c).
See Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6, 93 L. Ed. 2d. 649, 657 n.6 (1987).