Setik v Ruben [2009] FMCSC 4; 16 FSM Intrm. 380 (Chk. S. Ct. App. 2009) (23 March 2009)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL CASE NO. 06-2003

MARIKO SETIK and ORAN SETIK,
Appellants,

vs.

HERSIN RUBEN and MORIA RUBEN,
Appellees.

__________________________

ORDER REGARDING ENLARGEMENT

Decided: March 23, 2009

BEFORE:

Hon. Aliksa B. Aliksa, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

**Chief Justice, Kosrae State Court, Lelu, Kosrae
***Attorney at Law, Weno, Chuuk

APPEARANCES:

For the Appellants: Salomon M. Saimon, Esq.
P.O. Box 750
Weno, Chuuk FM 96942

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

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HEADNOTES

Appellate Review  Notice of Appeal
The deadline for filing an appeal from the Chuuk State Supreme Court appellate division to the FSM Supreme Court appellate division is 42 days from entry of judgment, which time may be extended an additional 30 days upon a showing of excusable neglect or good cause. Setik v. Ruben, [2009] FMCSC 4; 16 FSM Intrm. 380, 381 (Chk. S. Ct. App. 2009).

Appellate Review  Notice of Appeal
Although typically, an appellate judgment is entered at the same time the court enters its opinion, when the date judgment was entered was after the opinion, and when the appellants filed their notice within 42 days from entry of judgment, the notice of appeal was timely, and there was no need to seek an enlargement. Setik v. Ruben, [2009] FMCSC 4; 16 FSM Intrm. 380, 381 (Chk. S. Ct. App. 2009).

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COURT'S OPINION

PER CURIAM:

On October 2, 2008, the court issued its opinion affirming the trial court judgment confirming appellees' ownership of certain land. [Setik v. Ruben, [2008] FMCSC 14; 16 FSM Intrm. 158 (Chk. S. Ct. App. 2008).] On November 13, 2008, judgment was entered. On December 12, 2008, appellants filed in the Chuuk State Supreme Court Appellate Division a notice of appeal and writ of certiorari to the FSM Supreme Court, along with a motion for enlargement. On December 23, 2008, appellees filed their opposition to the enlargement, and on December 30, 2008, appellants filed their reply in support of enlargement.

In their briefs, appellants explain that the delay was the result of the trial court counselor's failure or inability to protect their appeal combined with current counsel's initial resistance to handling the appeal which was overcome by the realization that there were no other available counsel in Chuuk that could handle it. Appellees' response emphasizes that even if appellants' current counsel did not believe he could handle the appeal, there was no reason he could not have taken necessary steps to protect appellants' right of appeal.

The deadline for filing an appeal is 42 days from entry of judgment, which time may be extended an additional 30 days upon a showing of excusable neglect or good cause. FSM App. R. 4(a)(1) and 4(a)(5). In their briefs, both counsel assume that the deadline for filing an appeal began on October 2, 2008, when the court entered its opinion. Typically, a judgment is entered at the same time the court enters its opinion. Counsels' belief that the deadline for filing an appeal began on October 2, 2008 is therefore understandable, but November 13, the date judgment was entered, and not October 2, was the date from which the deadline for filing an appeal began to count. See FSM App. R. 4(a)(1) (appeals may be taken by the "filing of a notice of appeal . .&#16ithin forty two (42) d42) days of the entry of the judgment or order appealed from") (emphasis added). Therefore, since aants filed their notice within 42 days from entry of judgment, there was no need to seek enek enlargement. The notice of appeal was timely.

If, however, the October 2, 2008 entry of opinion had also been the date of entry of judgment for the purposes of FSM App. R. 4(a)(1), rendering October 2, 2008 the determinative date for the appeal deadline, as counsel assumed, then the court would need to find good cause or excusable neglect to grant an additional 30 days extension for the late filing. In that case, although the court finds it to be a close issue, it would find good cause for granting the enlargement based on the facts set forth in appellants' briefs.

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