Liwis v Rudolph [2007] FMCSC 34; 15 FSM Intrm. 245 (Chk. S. Ct. Tr. 2007) (18 July 2007)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 213-2001

FICHIUO LIWIS
on behalf of his brothers and sisters,
Appellants,

vs.

MINO RUDOLPH and his Sorlap Lineage,
Appellees.
__________________________________________

ORDER OF DISMISSAL

Camillo Noket
Chief Justice

Hearing: July 2, 2007
Decided: July 18, 2007

APPEARANCES:

For the Appellants: Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Appellees: George Hauk
P.O. Box 1405
Weno, Chuuk FM 96942

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HEADNOTES

Administrative Law  Judicial Review; Appellate Review

By statute, appeals from determinations of ownership by the Land Commission are treated and effected in the same manner as an appeal from the Chuuk State Supreme Court in a civil action. Thus, the Chuuk Rules of Appellate Procedure are the rules to be followed in appeals from Land Commission determinations. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 248 (Chk. S. Ct. Tr. 2007).

Appellate Review

Once a notice of appeal is filed the appellants' options in pursuing their appeal, are: 1) they can order from the court clerk a transcript of such parts of the proceedings not in the file, as they deemed necessary; 2) if they intend to urge on appeal that a Land Commission finding or conclusion was unsupported by the evidence or was contrary to the evidence, they can include in the record a transcript of all evidence; and 3) if the appellants decide not to include the whole transcript on appeal, they should, within 10 days of the filing of the notice of appeal, file a statement of the issues they intend to present on appeal. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 249 (Chk. S. Ct. Tr. 2007).

Appellate Review  Dismissal

When the appellants have wholly failed to comply with the proper procedure and the court, their continuing failure to comply with the court's orders justifies dismissing their appeal. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 249 (Chk. S. Ct. Tr. 2007).

Appellate Review  Dismissal

Where the appellants took no action beyond filing their notice of appeal on October 17, 2001, there is good ground to dismiss the appeal because an appeal may be dismissed when no action is taken beyond filing a notice of appeal, when no transcript is ordered and no certificate filed to the effect that no transcript would be ordered, and when notice was served, setting a date of oral argument and for filing appellant's opening brief, that stated that failure to do so would be ground for dismissal. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 249 (Chk. S. Ct. Tr. 2007).

Appellate Review  Dismissal

When the appellants took no action beyond filing their October 17, 2001 notice of appeal; when a November 19, 2003 order placed on the appellants the responsibility for ordering and obtaining a transcript of the Land Commission proceedings; when the November 19, 2003 order required the appellants to comply with the Appellate Procedure Rules 10 and 11 no later than December 19, 2003; when the appellants had every opportunity to comply with the November 19, 2003 order since the Land Commission transcript had been transmitted to the court on October 24, 2001, and was available for them to order and obtain after that date; when a March 28, 2007 order restated the appellants' obligation to comply with the November 19, 2003 order; when, at a April 2, 2007 status conference, the appellants were reminded of their obligation to comply with the November 19, 2003 order; when a May 16, 2007 order scheduling the submission of briefs and setting the hearing date on the appeal was based on both parties' agreement at the April 2, 2007 status conference; and when the appellants did not comply with the May 16, 2007 order and wholly failed to file a brief for their appeal and did not request an extension of time to file their brief, their appeal will be dismissed. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 249 (Chk. S. Ct. Tr. 2007).

Appellate Review  Dismissal

The Chuuk State Supreme Court's authority to dismiss a case on appeal on procedural grounds under the Chuuk State Rules of Appellate Procedure is purely discretionary. Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245, 250 (Chk. S. Ct. Tr. 2007).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

Introduction

This case involves an appeal from a Land Commission determination, made pursuant to Title 67 of the Trust Territory Code, relating to ownership of a land parcel known as Sopwis located in Wichap Village, Weno, Chuuk State.

Hearing on Appellants' appeal brief and Appellees' response brief and their supplemental motion to dismiss appeal was set for July 2, 2004 pursuant to a scheduling order entered by the court on May 16, 2007. No one appeared on behalf of the Appellants, including the Appellants' counsel of record. The Appellees' representative appeared with counsel and presented their argument in support of their supplemental motion to dismiss the appeal. The court granted the motion. The reasons follow.

Procedural Background

1. Appellants' Notice of Appeal in this case was filed on October 17, 2001.
   
2. On October 17, 2001, the Court Clerk, Mr. Angei, requested certification of records from the Senior Land Commissioner in the above captioned matter.
   
3. On October 24, 2001, in response to the request for certification of records, Mr. Iowas Simina filed with the court the requested certification of records entitled "in the matter of determination of ownership of the land parcel sopwis situated in wichap village, weno chuuk state by the chuuk state land commission." Attached to the certification of records were the Land Commission's original records regarding the property at issue. These included recordings of all hearings of the Land Commission relating to the property.
   
4. On or about August 1, 2003, a stipulation as to agreed [english] translation of decision of land commission was submitted and filed.
   
5. On November 10, 2003, the Court held a status conference and on November 19, 2003, issued an Order that Appellants comply with CSSC Appellate Procedure Rules 10 and 11 by December 19, 2003. True and correct copies of the November 19, 2003 Order were served on Mr. Johnny Meippen, Counsel for Appellants and Wesley Simina, Counsel for Appellees. Return Of Service (Nov. 20, 2003).
   
6. The November 19, 2003 Order placed on the Appellants the responsibility for ordering and obtaining a transcript of the Land Commission proceedings in this matter in compliance with CSSC Appellate Procedure Rules 10 and 11.
   
7. Court records reflect that the Court extended the time permitted for ordering the transcript of Land Commission proceedings to thirty days from the date of the November 19, 2003 Order after Appellants failed to comply with the 10 day time limit in CSSC Appellate Procedure Rules 10 and 11.
   
8. The Court's file indicates that Appellants did not comply with the deadline imposed by CSSC Appellate Procedure Rules 10 and 11 and the Court's November 19, 2003 Order and time extension.
   
9. Additionally, the file contains no record of any requests by Appellants for further extension of time to comply with the November 19, 2003 Order or any attempt whatsoever to comply with CSSC Appellate Procedure Rules 10 and 11
   
10. On February 15, 2007, Mr. George Hauk, counsel of Appellees filed a motion to dismiss the appeal. At that time, Mr. Hauk had not filed a notice of appearance on behalf of the Appellees. The Court's file still indicated Mr. Wesley Simina as counsel of record.
    
11. On March 13, 2007, the Court issued an order for a status conference to be held on March 22, 2007. Copies of the order were served on both parties' counsels. (Copies of Return of Services are in the Court file).
    
12. On March 22, 2007, a status conference was held pursuant to the March 13, 2007 Order. Appellees' representative appeared with new counsel, Mr. George Hauk. Appellants' named representative and counsel failed to appear. During this proceeding, Mr. George Hauk, filed his notice of appearance for the Appellees.
    
13. On March 28, 2007, counsel for both parties met with the Court to request the scheduling of another status conference. As a result, the Court issued an order for a status conference on April 2, 2007. The March 28, 2007 Order advised both parties to be prepared to advise the court on certain pending matters that the Court had earlier directed them to carry out, namely those matters set forth in the Court's November 19, 2003 Order.
    
14. Counsel for the Appellants appeared at the April 2, 2007 status conference without Appellants' representative. The Appellees' representative appeared with counsel. The Court reminded both parties that certified records of the Land Commission and the transcript of the Land Commission hearing in this case were available for the parties to obtain.
    
15. On May 16, 2007, in accordance with agreement of the parties at the April 2, 2007 status conference, the Court entered an order for further proceedings as follows:
    
    1. Appellants shall file their appeal brief no later than June 8, 2007.
       
    2. Appellees shall file their response brief no later than June 22, 2007.
       
    100. Hearing on briefs scheduled for July 2, 2007 at 9:30 am.
         
16. The record reveals that Appellants did not file their appeal brief on June 8, 2007 and still have not filed their brief as of the date of this order. Additionally, the record reveals that Appellants did not request a time extension to file their appeal brief.
    
17. On June 28, 2007, Appellees filed their supplemental motion to dismiss and served it on Appellants' counsel. The record reveals no opposition to the motion was filed.
    
18. On July 2, 2007, at 9:30 a.m., the hearing was held pursuant to the Court's May 16, 2007 Order. Appellees' representative Mino Rudolph appeared with counsel. Appellants and their counsel did not appear.
    

Rules of Appellate Procedure

By statute, appeals from land determinations of ownership by the Land Commission are "treated and effected in the same manner as an appeal from [the Chuuk State Supreme Court] in a civil action . . .&#1 67 T5. Thu. Thus, the the Chuuk State Rules of Appellate Procedure are the rules to be followed in appeals from land determinations of the Land Commission. Rule 10 (b) (1) of Appellate Procedure provides:

Within 10 days after the filing of the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. . . . Ifuch pof thef the proceeroceedings are order with the same period the appellant shall file a certificate to that effect.

Rule 10 (b) (2) provides:

If the appellant inten urgeppeal that a find finding oing or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.

Rule 10 (b) (3) provides:

Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this Rule 10, file a statement of the issues he intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement.

Notice of appeal in this case was filed on October 17, 2001. Since then, Appellants failed to use any of the options available to them in pursuing their appeal, as set out in the Appellate Procedure Rules 10(b)(1), 10(b)(2) and 10(b)(3).

First, Appellants could have ordered from the Court Clerk a transcript of such parts of the proceedings not in the file, as they deemed necessary. They did not.

Second, if Appellants had intended to urge on appeal that a finding or conclusion of the Land Commission was unsupported by the evidence or was contrary to the evidence, Appellants could have included in the record a transcript of all evidence. The Appellants did not.

Finally, if Appellants had decided not to include the whole transcript on appeal, they could have, within 10 days of the filing of the notice of appeal, filed a statement of the issues they intended to present on appeal. The Appellants did not.

Bases for Dismissal

The record indicates that the Appellants have wholly failed to comply with the proper procedure and rules of the Court. The Appellants' continuing failure to comply with the Court's orders justifies dismissing their appeal.

The Appellants took no action beyond filing their notice of appeal on October 17, 2001, and therefore there is good ground to dismiss the appeal. An appeal may be dismissed when no action is taken beyond filing a notice of appeal, when no transcript is ordered and no certificate filed to the effect that no transcript would be ordered, and when notice was served, setting a date of oral argument and for filing appellant's opening brief, that stated that failure to do so would be ground for dismissal. Os v. Enlet, [1998] FMCSC 23; 8 FSM Intrm. 587, 588 (Chk. S. Ct. App. 1998).

The November 19, 2003 Order placed on the Appellants the responsibility for ordering and obtaining a transcript of the Land Commission proceedings in this matter. By the Court's November 19, 2003 Order, the Appellants were ordered to comply with the Chuuk State Supreme Court Appellate Procedure, Rules 10 and 11 and that such compliance should take place not later than December 19, 2003. The Appellants had every opportunity to comply with the November 19, 2003 Order as the transcript from the Land Commission proceeding was transmitted to the Court by the Chuuk Land Commission on October 24, 2001 and was available for Appellants to order and obtain after that date.

The Court's March 28, 2007 Order restated the Appellants' obligation to comply with the November 19, 2003 Order and, at their April 2, 2007 status conference, Appellants were reminded by the Court of their obligation to comply with the November 19, 2003 Order.

The Court's May 16, 2007 Order scheduling the submission of briefs and setting the hearing date on Appellants' appeal, was based on agreement of both parties at the April 2, 2007 status conference. Again, Appellants did not comply with the Court's May 16, 2007 Order and wholly failed to file a brief for their appeal. Appellants did not request an extension of time to file their brief.

Conclusion

The Chuuk State Supreme Court's authority to dismiss a case on appeal on procedural grounds under the Chuuk State Rules of Appellate Procedure is purely discretionary. In re Lot No. 014-A-21[1999] FMCSC 17; , 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Based on the findings of facts, and conclusion of law, the case is hereby dismissed.

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