Mori v Dobich [2007] FMCSC 4; 15 FSM Intrm. 12 (Chk. S. Ct. App. 2007) (3 May 2007)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Mori v. Dobich, [2007] FMCSC 4; 15 FSM Intrm. 12 (Chk. S. Ct. App. 2007)

CINDY S. MORI and ALICE SERIOUS,
Appellants,

vs.

ISMAEL DOBICH,
Appellee.

CIVIL APPEAL CASE NO. 05-2006

ORDER DISMISSING APPEAL

Decided: May 3, 2007

BEFORE:

Hon. Dennis K. Yamase, Temporary Justice, Presiding*
Hon. Benjamin Rodriguez, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

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

APPEARANCES:

[2007] FMCSC 4; [15 FSM Intrm. 12]

For the Appellants:
Ermino Fritz
P.O. Box 604
Weno, Chuuk FM 96942

For the Appellee:
Ben Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

[15 FSM Intrm. 13]

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HEADNOTES

Appellate Review - Notice of Appeal
Appellants have thirty days from the date of the order appealed from to file their notice of appeal. Chuuk Appellate Procedure Rule 4(a)(5) permits the trial division to extend the time to file a notice of appeal by another 30 days, or to ten days after the entry of the order granting the extension, if the motion to extend is filed before the second thirty days has expired. The appellate court cannot enlarge the time to file a notice of appeal. Mori v. Dobich, [2007] FMCSC 4; 15 FSM Intrm. 12, 13 (Chk. S. Ct. App. 2007).

Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
The timely filing of a notice of appeal is jurisdictional. The appellate court must dismiss an appeal that was untimely filed no matter how meritorious the appellant’s claims are. Mori v. Dobich, [2007] FMCSC 4; 15 FSM Intrm. 12, 13-14 (Chk. S. Ct. App. 2007).

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COURT’S OPINION

PER CURIAM:

On December 28, 2001, the trial court entered its Order Supporting Judgment in Civil Action No. 83-97. On February 7, 2002, the plaintiffs in that case filed their notice of appeal from not only the December 28, 2001 order but also from the earlier March 2, 1998 judgment that it supplemented. (An appeal from that earlier judgment was dismissed on December 9, 1998.) On March 22, 2002, the appellee, Ismael Dobich, moved to dismiss the appeal on the ground that, since it was untimely filed, the appellate court had no jurisdiction. On April 19, 2002, the appellants filed their motion to enlarge time to file this appeal on the grounds that they had not been served the December 28, 2001 order until January 7, 2002, and that, having been abandoned by their previous counsel, it took some time for them to hire new counsel.

The appellants’ motion to enlarge time is denied and Dobich’s motion to dismiss is granted. Our reasons follow.

The appellants had thirty days from the date of the order appealed from to file their notice of appeal. Chk. App. R. 4(a)(1). Appellate Procedure Rule 4(a)(5) permits the trial division to extend the time to file a notice of appeal by another 30 days, or to ten days after the entry of the order granting the extension, if the motion to extend is filed before the second thirty days has expired. The appellate court cannot enlarge the time to file a notice of appeal. Chk. App. R. 26(b).

The time to file a notice of appeal from the December 28, 2001 order expired on January 28, 2002, since January 27, 2002 fell on Sunday. The appellants’ February 7, 2002 notice of appeal was thus filed too late. The time to file a motion to extend the time to appeal expired February 27, 2002. The April 19, 2002 motion to extend was thus filed too late.

[2007] FMCSC 5; [15 FSM Intrm. 14]

The timely filing of a notice of appeal is jurisdictional. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 145 (App. 2002). The appellate court must dismiss an appeal that was untimely filed no matter how meritorious the appellant’s claims are. Accordingly, this appeal is dismissed.

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