Kuch v Mori [2012] FMCSC 2; 18 FSM Intrm. 337 (Chk. S. Ct. App. 2012) (27 July 2012)

CHUUK STATE SUPREME COURT APPELLATE DIVISION

CIVIL APPEAL NO. 01-2007

WAKIN KUCH,
Appellant,

vs.

SHELLYANN MORI, BENJAMIN NITHON, ANNA W. MIJARES, FELICSITAS WENGU, SIMIKO WENGU, and MAGDALENA W.,
Appellees.
_________________________________________

ORDER OF DISMISSAL NISI

Decided: July 27, 2012

BEFORE:

Hon. Midasy O. Aisek, Associate Justice, presiding
Hon. Dennis K. Yamase, Temporary Justice*
Hon. Jayson Robert, Temporary Justice**

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

APPEARANCES:

For the Appellant: Michael Marco

Micronesian Legal Services Corporation

P.O. Box D

Weno, Chuuk FM 96942

For the Appellees: Stephen V. Finnen, Esq.

P.O. Box 1450

Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney and Client - Withdrawal
Counsel may be permitted to withdraw once they have fulfilled the conditions set by the court. Kuch v. Mori, [2012] FMCSC 2; 18 FSM Intrm. 337, 338 (Chk. S. Ct. App. 2012).

Appellate Review - Dismissal
A five-year old appeal will be dismissed when the appellant has failed to diligently pursue the matter and has not filed an opening brief and no counsel filed an appearance even though he intends to pursue the appeal through other counsel. The appellees' renewed motions to dismiss are granted unless counsel has entered an appearance on the appellant's behalf by August 24, 2012 and unless that counsel has filed an opening brief by September 13, 2012, and if these events do not occur, the appeal is automatically dismissed without further order of the court. Kuch v. Mori, [2012] FMCSC 2; 18 FSM Intrm. 337, 339 (Chk. S. Ct. App. 2012).

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COURT'S OPINION

PER CURIAM:

This appeal comes before the court on Micronesian Legal Services Corporation's motion to withdraw as appellant's counsel and on the appellees' renewed motions to dismiss the appeal. We grant the motion to withdraw and we grant nisi the renewed motions to dismiss - this appeal is hereby dismissed unless counsel has entered an appearance for the appellant Wakin Kuch by August 24, 2012, and has filed an opening brief by September 13, 2012. Our reasons follow.

I. Background

On November 20, 2006, Wakin Kuch filed suit to claim or to recover an interest in land (Lot No. 033-A-02 called Ununou or Episarata) situated in Tunnuk village, Weno. On February 20, 2007, the trial court dismissed the matter with prejudice because the court lacked subject-matter jurisdiction over the case since 67 TTC 105 gives only the Chuuk Land Commission, and not the courts, primary jurisdiction over the determination of interests in land within a declared land area unless "special cause" has been shown. Weno is a designated land registration area. The trial court ruled that special cause had not been shown. Kuch filed his notice of appeal on February 23, 2007.

We note initially that the trial court's use of the term "with prejudice" was likely error. When a case is dismissed for lack of subject-matter jurisdiction, it is dismissed without prejudice to a determination on the merits by a tribunal that has subject-matter jurisdiction over the case. We can only conclude that when the trial court dismissed the case with prejudice the prejudice it was referring to was not to the case's merits but to the determination of the trial court's subject-matter jurisdiction.

Once the record was certified as ready on November 15, 2007, Kuch had 40 days to file his opening brief. Chk. App. R. 31(a). No opening brief has ever been filed. Kuch's counsel passed away. Micronesian Legal Services Corporation ("MLSC") was unsure whether this was an MLSC case or a private case of Kuch's deceased counsel, who had been an MLSC employee. MLSC strove resolutely to protect Kuch's interests and to obtain continuances and a denial of the appellees' original motion to dismiss for want of prosecution so that it could contact Kuch and learn his intentions in the matter. MLSC was able to establish contact with Kuch, to provide the court with Kuch's address in Hawaii, and to inform the court, in March 2012, that Kuch wished to prosecute his appeal and to engage the services of a certain private attorney (who is also Kuch's relative) to pursue this appeal.

II. Motion to Withdraw

MLSC, by its March 2012 filing and report to the court, has fulfilled the conditions set by the single justice's February 2012 Order Granting Withdrawal under Conditions. Accordingly, its motion to withdraw is granted.

III. Motions to Dismiss

The appellees' renewed motions to dismiss, filed February 8, 2012, and July 3, 2012, are pending before us. They both note that the last enlargement granted Kuch required that he file his opening brief by January 17, 2012, and that no brief has been filed and no further enlargements have been sought or granted. The appellees contend that it is time that this appeal be dismissed because Kuch has failed to diligently pursue the matter.

We agree. This appeal is over five years old. It is time that it be decided. We cannot do so because Kuch has not filed an opening brief and no counsel filed an appearance for him although MLSC informed us in March that Kuch had informed MLSC that he intended to pursue the appeal through other counsel. It has been over four months and no other counsel has filed an appearance.

We note that if we heard this appeal on its merits, the only issue properly before us and the only issue we could decide is whether the trial court's dismissal was proper; that is, whether the trial court lacked subject-matter jurisdiction or not. If we were to conclude that it did not lack jurisdiction, we would then remand this case to the trial court to decide all the other issues that Kuch's lawsuit raises. We also note that if this appeal is dismissed, or if the appeal is heard and the trial court decision affirmed, Kuch may still possibly be able to pursue his claims in the Land Commission. We cannot say.

Accordingly, the appellees' renewed motions to dismiss are granted unless counsel has entered an appearance on Kuch's behalf by August 24, 2012 and unless that counsel has filed an opening brief by September 13, 2012. See Chk. App. R. 31(c). If these events do not occur, this appeal is dismissed automatically without further order of the court.

IV. Conclusion

MLSC's motion to withdraw as the appellant's counsel is granted and the appellees' renewed motions to dismiss are granted unless counsel has entered an appearance on Kuch's behalf by August 24, 2012 and unless that counsel has filed an opening brief by September 13, 2012. The clerk shall serve this order on Wakin Kuch directly, at his Hawaii address.

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