Lewis v Rudolph [2009] FMCSC 2; 16 FSM Intrm. 278 (Chk. S. Ct. App. 2009) (27 January 2009)

[2009] FMCSC 2; 16 FSM Intrm 278

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

Hearing: January 20, 2009
Decided: January 27, 2009

BEFORE:

Hon. Dennis K. Yamase, Temporary Justice, Presiding*
Hon. Salomon M. Saimon, Temporary Justice**
Hon. William E. Minkley, 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  Dismissal
The parties to an appeal may, without any court action, voluntarily dismiss the appeal at any time. If the parties sign and file with the appellate division clerk an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and pay whatever fees are due, the clerk must enter the case dismissed, but no mandate or other process will issue without a court order. To be effective, a signed and filed voluntary dismissal must included specific terms about payment of costs. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278, 279-80 (Chk. S. Ct. App. 2009).

Appellate Review  Dismissal
A dismissal, although signed by counsel for all parties and containing an agreement about settlement terms, which it was not necessary to include to effect the voluntary dismissal, but which did not specify the terms as to payment of costs, would have if it had contained terms as to the payment of costs, been effective to dismiss the appeal without any court action except the clerk's entry of dismissal. Any settlement terms other than costs included in a stipulated dismissal would not form an order of the court, but would be a private agreement between the parties, which would not have to be included in the notice of voluntary dismissal. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278, 280 (Chk. S. Ct. App. 2009).

Attorney's Fees; Costs
Attorneys' fees are not costs. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278, 280 (Chk. S. Ct. App. 2009).

Appellate Review  Briefs, Record, and Oral Argument
Even if the appellate clerk omits the due dates for briefs in his notice that he has received the record, counsel should, because the record is certified by the trial division clerk before transmittal to the appellate clerk, consider that the record has been certified and that the time for briefs to be filed has started. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278, 280 (Chk. S. Ct. App. 2009).

Appellate Review  Briefs, Record, and Oral Argument
When the parties receive the appellate clerk's notice that he has received the record, the parties have been notified that the record has been certified and that the appellant's brief is due 40 days hence and should conform their behavior accordingly. Lewis v. Rudolph, [2009] FMCSC 2; 16 FSM Intrm. 278, 280 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Temporary Justice, Presiding:

On January 20, 2009, parties' counsel appeared for hearing before the panel on the appellees' motion to dismiss, filed July 7, 2008. Also before the court was a Notice of Dismissal of Appeal Based on Stipulated Terms of Dismissal, filed February 26, 2008, by counsel for all parties. The court heard argument on the motion and on the notice of dismissal. Appellants' counsel also delineated what he considered procedural problems  that he never received the certification of the record or an October 23, 2007 notice concerning the record, but that he did receive a January 5, 2009 notice that the record was ready to distribute and was waiting for a certification of the record that would trigger the 40-day period within which he would have to prepare the appellants' brief. In light of those documents, he asked for two to three weeks to receive the record and file the appellants' brief.

The February 26, 2008 notice of dismissal was ineffective to dismiss the case. The parties considered this agreement to be ineffective because it contained a detailed settlement agreement to which all involved did not consider effective until signed, not only by counsel, but also by the lead representatives of each side, and since Fichiuo Lewis had died and it was not settled who, among the appellants would be that side's spokesperson, no one had signed for that side. Appellants' counsel stated he was unaware that a sister of Fichiuo Lewis had filed an objection to the settlement until he inspected the file not long before the hearing.

The court considers the notice of dismissal ineffective for a different reason. The parties to an appeal may, without any court action, voluntarily dismiss an appeal at any time. If the parties "sign and file with the clerk of the State Court Appellate Division an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and . . . pay wer fee dare due, the, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the court." Chk. App. R. 42(b). To be effective, a signed and filed voluntary dismissal must included specific terms about payment of costs. See Margulin v. CHS Acquisition Corp., [1989] USCA7 806; 889 F.2d 122, 123 (7th Cir. 1989). The dismissal, although signed by counsel for all parties and containing an agreement concerning terms of a settlement, which it was not necessary to include to effect the voluntary dismissal, did not specify the terms as to payment of costs. It did contain terms about payment of attorneys' fees. But attorneys' fees are not costs. Cholymay v. Chuuk State Election Comm'n, [2001] FMCSC 5; 10 FSM Intrm. 220, 223 (Chk. S. Ct. App. 2001). If it had contained terms as to the payment of costs, it would have been effective to dismiss this appeal without any court action except the clerk's entry of dismissal. Any other settlement terms included in a stipulated dismissal would not, of course, form an order of this court, but would be a private agreement between the parties, which would not have to be included in the notice of voluntary dismissal.

Appellants' counsel was confused and failed to realize that the time to prepare and file the appellants' brief had started because the clerk's notice that the clerk had received the record did not include a statement that the record had been certified or that briefs were due. Because past appellate practice had usually included a notice by the clerk of the due date of appellate briefs, we think it advisable that the appellate clerk, when issuing a notice that the record has been received, include the due dates for the appellants' opening briefs and that appellees' briefs are due 30 days after the appellants' are filed. However, we also wish to put counsel practicing in the appellate division on notice that even if the appellate clerk omits the due dates for briefs in his notice that he has received the record, counsel should, because the record is certified by the trial division clerk before transmittal to the appellate clerk, Chk. App. R. 10(a), 11(b), consider that the record has been certified and that the time for briefs to be filed has started. In the future, even if the appellate clerk's notice is not as explicit as it could be, the court will consider that, when the parties receive the appellate clerk's notice that he has received the record, the parties have been notified that the record has been certified and that the appellant's brief is due 40 days hence and should conform their behavior accordingly.

In this case, we are disposed to be lenient only this once, now therefore it is hereby ordered that the appellees' motion to dismiss is denied and that the appellants shall have until February 13, 2009 to file their opening brief. If no appellants' brief is forthcoming, the appellees may move to dismiss on the ground that the appellants have not timely filed a brief and have violated this court order.

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