Ruben v Hartman [2007] FMCSC 16; 15 FSM Intrm. 240 (Chk. S. Ct. App. 2007) (14 September 2007)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240 (Chk. S. Ct. App. 2007)

MORIA RUBEN and HERSIN RUBEN,
Appellants,

vs.

CHONSY TIU HARTMAN, SAMUEL HARTMAN,
CHUUK STATE GOVERNMENT, MAIKAWA
PICHO, on behalf of the WITO CLAN of Iras,
and ROKURO STEPHEN,
Appellees.

CIVIL APPEAL NO. 02-2005
CIVIL APPEAL NO. 04-2005

ORDER AWARDING COSTS

Decided: September 14, 2007

BEFORE:

Hon. Benjamin Rodriguez, Temporary Justice, Presiding*
Hon. Repeat Samuel, Temporary Justice**
Hon. Derensio Konman, Temporary Justice**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Attorney at Law, Weno, Chuuk

[15 FSM Intrm 249]

APPEARANCE:

For the Appellants:
Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Costs
Prevailing parties are entitled to their costs on appeal. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Appellate Review - Briefs and Record; Costs
Costs for printing and copying the brief, appendix, and reply brief are expenses that traditionally have been included within costs that are awarded to prevailing parties. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Costs
Transcript costs are not taxable by the appellate division, but (along with any fees for the appellants’ filing of the notices of appeal) are taxable in the trial division. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Costs
An attorney’s reasonable travel expenses are allowable as costs when there is a showing that no attorney is available on the island where the litigation is taking place, especially when the attorneys’ travel expenses were reasonable and the actual expenses pro-rated proportionally with other clients on whose behalf they also traveled. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Costs
When the prevailing parties’ counsel’s travel expenses were necessarily incurred for services which were actually and necessarily performed, his travel expenses will be awarded as costs because the court may allow and tax any additional items of actual disbursement, other than fees of counsel, which it deems just and finds to have been necessarily incurred for services which were actually and necessarily performed for the prevailing party. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Costs
When the appellants successfully sought to reverse trial division rulings in one appellee’s favor and since the other named appellees were nominal parties unaffected by the appeal, all costs awarded the appellants will be taxable against that one appellee. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 (Chk. S. Ct. App. 2007).

Costs
Generally, costs cannot be awarded for or against the state government. Ruben v. Hartman, [2007] FMCSC 16; 15 FSM Intrm. 240, 242 n.1 (Chk. S. Ct. App. 2007).

* * * *

[2007] FMCSC 35; [15 FSM Intrm 250]

COURT’S OPINION

PER CURIAM:

On July 11, 2007, the appellants filed their motion for costs. The motion asks that the court award them $1,581.15 in costs. The costs include $132.50 in transcript costs; $329.60 for copies of the brief, appendix, and reply brief; and $1,119.05 in their attorney’s travel costs from Pohnpei for his attendance at oral argument on April 23, 2007 and on May 1, 2007 (with only 80% of the second trip expenses sought since 20% of that trip’s costs were billed to other of the attorney’s clients). The travel costs are sought on the ground that "[d]ue to the limited amount of attorneys available in Chuuk who can handle this type of work, appellants retained counsel in Pohnpei." Total costs sought are $1,581.15.

No opposition to the motion was filed.

Our June 15, 2007 Opinion in this matter [Ruben v. Hartman, [2007] FMCSC 10; 15 FSM Intrm. 100, 115 (Chk. S. Ct. App. 2007)] noted that Moria Ruben and Hersin Ruben, as prevailing parties, are entitled to their costs on appeal. Chk. App. R. 39(a).

Costs for printing and copying are expenses that traditionally have been included within costs that are awarded to prevailing parties. Cholymay v. Chuuk State Election Comm’n[2001] FMCSC 5; , 10 FSM Intrm. 220, 224 (Chk. S. Ct. App. 2001). The $329.60 for copies of the brief, appendix, and reply brief are therefore allowed as costs.

The $132.50 in transcript costs are not taxable by the appellate division, but (along with any fees for the appellants’ filing of the notices of appeal) are taxable in the trial division. Chk. App. R. 39(e). Once Moria Ruben and Hersin Ruben have served and filed their bill of costs with the chief clerk of the trial division, the trial division clerk shall, one day later, tax those costs in favor of Moria Ruben and Hersin Ruben and against Chonsy Tiu Hartman. Chk. Civ. 54(d).

An attorney’s reasonable travel expenses are allowable as costs when there is a showing that no attorney is available on the island where the litigation is taking place, especially when the attorneys’ travel expenses were reasonable and the actual expenses pro-rated proportionally with other clients on whose behalf they also traveled. Udot Municipality v. FSM, [2002] FMSC 2; 10 FSM Intrm. 498, 501 (Chk. 2002). The appellants’ attorney’s travel expenses were reasonable and were pro-rated. The appellants made an adequate showing that other, on-island counsel were not available. The $1,119.05 in travel expenses are therefore awarded as costs. This we do because "[t]he court may allow and tax any additional items of actual disbursement, other than fees of counsel, which it deems just and finds to have been necessarily incurred for services which were actually and necessarily performed." Chk. S.L. No. 190-08, § 32(2). Co’s travel exel expenses were necessarily incurred for services which were actually and necessarily performed.

Since the appellants successfullght to reverse trial division rulings in Chonsy Tiu Hartmanrtman’s favor and since the other named appellees, Chuuk State Government,[1] Maikawa Picho on behalf of the Wito Clan of Iras, and Rokuro Stephen, were nominal parties unaffected by this appeal, all costs awarded Moria Ruben and Hersin Ruben shall be taxable against Chonsy Tiu Hartman.

Now therefore it is hereby ordered that the motion is granted and that appellee Chonsy Tiu Hartman is liable to appellants Moria Ruben and Hersin Ruben for $1,448.65 in costs. Appellants Moria Ruben and Hersin Ruben shall have their transcript costs of $132.50 and any notice of appeal filing fees taxed by the chief clerk of the trial division.

[15 FSM Intrm 251]

Footnotes:

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[1].Generally, with exceptions not applicable here, costs cannot be awarded for or against the state government. Chk. App. R. 39(b).