Phillip v Moses [2011] FMCSC 9; 18 FSM Intrm. 85 (Chk. S. Ct. App. 2011) (5 December 2011)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL NO. 08-2007

ROKE PHILLIP,
Appellant,

vs.

WISEMAN MOSES,
Appellee.
___________________________________ )

ORDER DENYING DISMISSAL

Decided: December 5, 2011

BEFORE:

Hon. Repeat R. Samuel, Associate Justice
Hon. Dennis K. Yamase, Temporary Justice*
Hon. Aaron L. Warren, Temporary Justice**

*Associate Justice, FSM Supreme Court, Palikir, Pohnpei
**Attorney at Law, Chuuk Attorney General's Office, Weno, Chuuk

APPEARANCES:

For the Appellant: Johnny Meippen, Esq.

P.O. Box 705

Weno, Chuuk FM 96942

For the Appellee: Fredrick A. Hartmann

P.O. Box 453

Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review - Notice of Appeal
Since a notice of appeal is a paper that the clerk of the court appealed from - the Chuuk Sate Supreme Court trial division clerk - is required to serve on the parties, Appellate Rule 25(b), by its terms, does not apply, and the appellant need only timely file the notice with the court clerk. Phillip v. Moses, [2011] FMCSC 9; 18 FSM Intrm. 85, 87 (Chk. S. Ct. App. 2011).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
Since the Chuuk Appellate Rules require the clerk of the court appealed from to serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, if the appellee was not served a copy of the notice of appeal, it is not the appellant's fault, but an omission by the trial court clerk. In such a case, the appellate court cannot dismiss an appeal and deprive an aggrieved appellant of his day in court merely because a court employee may have neglected to perform. Phillip v. Moses, [2011] FMCSC 9; 18 FSM Intrm. 85, 87 (Chk. S. Ct. App. 2011).

Appellate Review - Dismissal
A security bond is not a requirement to perfect an appeal although Appellate Rule 7 permits the trial court appealed from to require a bond for appellate costs if the trial court finds it necessary. Phillip v. Moses, [2011] FMCSC 9; 18 FSM Intrm. 85, 87 (Chk. S. Ct. App. 2011).

Appellate Review - Dismissal
The absence of a bond to stay the execution of a money judgment while the appeal is pending would not be a ground for dismissal of an appeal. Phillip v. Moses, [2011] FMCSC 9; 18 FSM Intrm. 85, 87 (Chk. S. Ct. App. 2011).

Appellate Review - Briefs, Record, and Oral Argument; Costs
If an appellee has not actually received a copy of the appellant's opening brief, he may ask the appellate clerk to make a copy for him with the copying cost to be, after the appeal has been decided, taxed by the court on the non-prevailing party. Phillip v. Moses, [2011] FMCSC 9; 18 FSM Intrm. 85, 87 (Chk. S. Ct. App. 2011).

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COURT'S OPINION

REPEAT R. SAMUEL, Associate Justice:

This came before the court for hearing the appellee's motion to dismiss for failure to serve the appellee with a notice of appeal and failure to prosecute the appeal (the appellee contends that the appellant failed to file an opening brief). Just before the hearing, Derensio Konman of Micronesian Legal Services Corporation filed a notice of special appearance and a motion for a continuance until the appellant's new counsel could appear. The panel granted the special appearance and the continuance from the bench. The court ordered appellant's new counsel to file and serve his notice of appearance by September 30, 2011, and file and serve the appellant's opposition to the appellee's motion to dismiss by later than October 3, 2011. The appellee was given to October 12, 2011, to file and serve a reply to the opposition.

We decide the motion to dismiss on the papers without further oral argument. We deny the motion. Our reasons follow.

I.

The appellee, Wiseman Moses, contends that the appellant Roke Phillip did not serve him or his counsel with the notice of appeal and that therefore the appeal should be dismissed for failing to properly serve the notice of appeal on him. For this he relies on Chuuk Appellate Rule 25 which states:

(b) Service of All Persons Required. Copies of all papers filed by any party and not requires to be served by the clerk shall, at or before the time of filing, be served by a party or persons acting for that party on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.

(c) Mann Service. Servicervice may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is comple mailing.

MosesMoses also contends that the appeal should be dismissed for the failure to post a security bond and at the September 9, 2011 hearing, when the court noted it had the appellant's opening brief in its file,[1] Moses's counsel added that it had not been served on him and that that was a further ground for dismissal.

Phillip responds that there is a certificate of service for the notice of appeal and that the lack of a security bond is not a ground for dismissal.

II.

Moses's motion is without merit. Under the Chuuk Appellate Rules, a notice of appeal is a paper that the clerk of the court appealed from (the Chuuk Sate Supreme Court trial division clerk) is required to serve on the parties, Chk. App. R. 3(d), so Appellate Rule 25(b), by its terms, does not apply. The appellant need only timely file the notice with the court clerk, which he did on August 27, 2007.

Counsel's failure to serve the notice of appeal on the appellee's counsel is not fatal. Since the Chuuk Appellate Rules require that the clerk of the court appealed from must serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, Chk. App. R. 3(d), if the appellee was not served a copy of the notice of appeal, it is not the appellant's fault, but an omission by the trial court clerk. Bossy v. Wainit, [2007] FMCSC 7; 15 FSM Intrm. 30, 32 (Chk. S. Ct. App. 2007). We cannot dismiss an appeal and deprive an aggrieved appellant of his day in court merely because a court employee may have neglected to perform. Id.

Furthermore, a security bond is not a requirement to perfect an appeal. The appellate rule Moses cites, Rule 7, only permits the trial court appealed from to require a bond for appellate costs if the trial court finds it necessary. There is no such trial court order in this case. The only other instance of an appellate bond is a bond needed to stay the execution of a money judgment while the appeal is pending. See Chk. Civ. R. 62(d). That also does not apply to this appeal and would not, in any event, be a ground for dismissal.

Lastly, if Moses has not actually received a copy of Phillip's opening brief, he may ask the appellate clerk to make a copy for him with the copying cost to be, after this appeal has been decided, taxed by the court on the non-prevailing party.

III.

Accordingly, the motion to dismiss is denied. Moses has thirty days to file his answering brief. Phillip may file a reply brief by December 9, 2011. Oral argument will be held December 12, 2011, at 9:30 a.m.

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^[1] The appellate file contains an opening brief filed by the appellant’s trial court counsel, Hans Wiliander.