Lewis v Rudolph [2009] FMCSC 13; 16 FSM Intrm. 499 (Chk. S. Ct. App. 2009) (24 June 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL CASE NO. 06-2007

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

vs.

MINO RUDOLPH and his Sorlap Lineage,
Appellees.

_________________________

ORDER OF DISMISSAL

Hearing: May 21, 2009
Decided: June 24, 2009

BEFORE:

Hon. Dennis K. Yamase, Temporary Justice, Presiding*
Hon. Salomon Saimon, Temporary Justice**
Hon. George Z. Isom, Temporary Justice**

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

APPEARANCES:

For the Appellants: Johnny Meippen
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

Appellate Review  Briefs, Record, and Oral Argument
The burden is on the appellant to apply, before his time allowance has run, for additional time to file a brief upon a showing of real need which will not unduly prejudice the appellee, and until such application for extended time to file a brief is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused. Lewis v. Rudolph, [2009] FMCSC 13; 16 FSM Intrm. 499, 501 (Chk. S. Ct. App. 2009).

Appellate Review  Dismissal
When there is a pattern of not seeking enlargements of time until after filing dates have passed, whether the date was set by the court or by rule; when this practice is considered evidence of a lack of good faith; and when the appellant does not present any extraordinary circumstances that would warrant excusing his neglect in filing his brief late, the dismissal of his appeal is proper. Lewis v. Rudolph, [2009] FMCSC 13; 16 FSM Intrm. 499, 501-02 (Chk. S. Ct. App. 2009).

Appellate Review  Dismissal
When the appellants never moved for an enlargement of time to file their brief, either before or after any of several brief-filing deadlines; when the reason given orally for the delay  a problem with the trial division docket entries record  hardly constitutes extraordinary circumstances or even good cause since that document was in the appellate file as an attachment to the clerk's November 27, 2008 notice and since the court's January 27, 2009 order was predicated on the certification of the trial division docket and record; and when, considering that land is so important in Chuuk and underlying the appeal there is a land case, it was inexplicable that the appellants were not more diligent in prosecuting this appeal, the appellees' motion to dismiss will be granted. Lewis v. Rudolph, [2009] FMCSC 13; 16 FSM Intrm. 499, 502 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Temporary Justice, Presiding:

This is an appeal from the trial division's July 18, 2009 dismissal of Fichiuo Lewis's October 17, 2001 appeal from a Land Commission decision about certain land in Wichap, Weno. The background behind the trial division dismissal is reported at Liwis v. Rudolph, [2007] FMCSC 34; 15 FSM Intrm. 245 (Chk. S. Ct. Tr. 2007) and need not be repeated here. The appellees' motion to dismiss is granted. The court's reasons follow.

I.

On January 27, 2009, we denied the appellees' first motion to dismiss and we did not recognize a purported notice of dismissal because that notice was ineffective. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278 (Chk. S. Ct. App. 2009). In that order, however, we stated that we were disposed to be lenient only that once, and that if the appellants' opening brief was not filed by February 13, 2009, the appellees could "move to dismiss on the ground that the appellants have not timely filed a brief and have violated this court order." Id. at 280.

No brief or motion to enlarge time was filed. On February 23, 2009, the appellees filed a second motion to dismiss. On March 18, 2009, the parties' counsel, on short notice, appeared for hearing on the appellees' motion to dismiss. By our March 19, 2009 order, we reluctantly denied the second motion to dismiss because, contrary to the motion's certificate of service, the motion to dismiss had not been served on appellants' counsel until ten minutes before the hearing and, if a hearing had not been set, might never have been served on counsel, and because it was uncertain whether appellants' counsel had been served or had received, until early March, notice of the February 13, 2009 filing deadline. We felt that we were left with no choice but to be lenient a second and one last time. The March 18, 2009 order set April 22, 2009, as the deadline for the appellants to file their opening brief and also provided that if no brief was forthcoming, the appellees could, after proper service, move to dismiss on the ground that the appellants had not timely filed a brief and had violated the March 18, 2009 court order.

The appellees filed a third motion to dismiss on April 29, 2009. The appellate clerk marked it as filed at 10:00 a.m. Also on April 29, 2009, the appellants filed an opening brief. The appellate clerk marked it as filed at 2:40 p.m. The appellants did not file a motion to enlarge time to file their brief.

II.

The appellees move to dismiss this appeal on the grounds that the appellants had not filed a brief by April 22, 2009; that the court had warned the parties that that date was the appellants' last chance to file; and that the appellants had not been successful in meeting any in a series of deadlines. The motion also contained some impertinent and irrelevant comments. Counsel is warned that such matter does not advance his clients' cause or contribute to the discussion. Any such future remarks may result in counsel being rebuked, reprimanded, or otherwise sanctioned.

At oral argument, the appellees emphasized that the appellants had continually failed to meet deadlines, including deadlines to file briefs, ever since this dispute was appealed from the Land Commission to the trial division. However, whether the appellants failed to meet brief-filing deadlines in the trial division is not now before us. That issue constitutes the merits of this appeal. Although this case involves a Land Commission decision in a land ownership dispute, the merits of the appeal do not involve a land issue. The appeal's merits concern only whether the trial division's dismissal for failure to prosecute the appeal from the Land Commission was proper. Therefore, in ruling on the motion to dismiss, we will only consider the appellants' alleged lapses or failures in the appellate division and disregard any in the trial division.

At oral argument, the appellants contended that, under the court's March 18, 2009 order, the appellees were permitted to move for dismissal only if the appellants had not yet filed a brief, regardless of whether that brief was timely filed, and that since they had filed their brief, albeit one week after the deadline, but before the appellees had moved to dismiss this appeal, the motion to dismiss should be denied. Although the appellants never moved for an enlargement of time within which to file their brief, at oral argument, they made some reference that the delay was caused because the record of the trial division docket entries had been unavailable until a few days before their brief was filed and that the docket entries were necessary to the briefing. Lastly, the appellants urged us not to dismiss this appeal because this is a land case and in Chuuk land means everything  it is life insurance and social security.

The appellants are incorrect that as long as they filed a brief before the appellees filed a motion to dismiss, the appellees were precluded from moving for dismissal. Our order did not say that. Moreover, the appellees filed their motion to dismiss over 4½ hours before the appellants filed their brief. This contention is without merit.

The burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee, and until such application for extended time to file a brief is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused. Palsis v. Tafunsak Mun. Gov't, [2008] FMSC 59; 16 FSM Intrm. 116, 130 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 114 (App. 2008). When there is a pattern of not seeking enlargements of time until after filing dates have passed, whether the date was set by the court or by rule; when this practice is considered evidence of a lack of good faith; and when the appellant does not present any extraordinary circumstances that would warrant excusing his neglect in filing his brief late, the dismissal of his appeal is proper. Palsis, 16 FSM Intrm. at 130; Heirs of George, 16 FSM Intrm. at 114-15.

In this case, the appellants never moved for an enlargement of time to file their brief, either before or after any of the brief-filing deadlines. The reason given orally for the delay  a problem with the trial division docket entries record  hardly constitutes extraordinary circumstances or even good cause when that document was in the appellate file as an attachment to the clerk's November 27, 2008 notice and when our January 27, 2009 order was predicated on the certification of the trial division docket and record. Consequently, we cannot say that the appellants' delay in filing a brief was done in good faith.

Lastly, since land is so important in Chuuk and since underlying this appeal there is a land case, we find it inexplicable that the appellants were not more diligent in prosecuting this appeal. We would expect that, because of the great importance of land rights, the appellants would have either moved for an enlargement of time to file their brief, if they had good cause to, or have diligently filed a brief before the filing deadline as extended had passed. They did neither.

III.

Accordingly, the appellees' motion to dismiss is granted. The parties shall bear their own costs.

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