Kuch v Mori [2012] FMCSC 5; 18 FSM Intrm. 442 (Chk. S. Ct. App. 2012) (30 October 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 AFFIRMING DISMISSAL

Decided: October 30, 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: Salomon Saimon, Esq.

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

Appellate Review - Motions
Motions may be decided without oral argument. Kuch v. Mori, [2012] FMCSC 5; 18 FSM Intrm. 442, 443 (Chk. S. Ct. App. 2012).

Civil Procedure - Dismissal - Lack of Jurisdiction
Whenever 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. This should make sense because a dismissal with prejudice is considered a ruling on the case's merits, and if a court lacks subject-matter jurisdiction over a case, the court is without any authority to make any ruling on the merits. Kuch v. Mori, [2012] FMCSC 5; 18 FSM Intrm. 442, 443 (Chk. S. Ct. App. 2012).

Civil Procedure - Dismissal - Lack of Jurisdiction
A trial court's dismissal "with prejudice" for lack of subject-matter jurisdiction is either reversible error or it only addresses the determination of the trial court's subject-matter jurisdiction, not the merits of the plaintiff's case. It has no other effect. Kuch v. Mori, [2012] FMCSC 5; 18 FSM Intrm. 442, 444 (Chk. S. Ct. App. 2012).

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COURT'S OPINION

PER CURIAM:

On July 27, 2012, we noted the appellees' renewed motions to dismiss the appeal and issued our Order of Dismissal Nisi that automatically dismissed this case unless counsel entered an appearance for the appellant Wakin Kuch by August 24, 2012 and filed an opening brief by September 13, 2012. Kuch v. Mori, [2012] FMCSC 2; 18 FSM Intrm. 337, 339 (Chk. S. Ct. App. 2012). Wakin Kuch's new counsel entered his appearance on August 23, 2012. On September 12, 2012, Kuch filed his Notice of Dismissal of Appeal, in which he asks that we make our earlier statement that "that the trial court's use of the term 'with prejudice' was likely error" an explicit term of our dismissal. Since we may decide motions without oral argument, seeJonah v. FSM Dev. Bank, [2011] FMSC 22; 17 FSM Intrm. 506, 507 (App. 2011); Christian v. Urusemal, [2006] FMSC 25; 14 FSM Intrm. 291, 293 (App. 2006), we do so now.

Whenever 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. National Fisheries Corp. v. New Quick Co., [1999] FMSC 7; 9 FSM Intrm. 147, 148 (Pon. 1999) (a dismissal for lack of jurisdiction should recite that fact so as to make clear that it is without prejudice to a different suit in a court that has jurisdiction). An action is subject to dismissal without prejudice whenever it appears that the court lacks subject-matter jurisdiction. Iwo v. Chuuk, [2012] FMSC 8; 18 FSM Intrm. 182, 184 (Chk. 2012); People of Gilman ex rel. Tamagken v. M/V Easternline I, [2010] FMSC 11; 17 FSM Intrm. 81, 85 (Yap 2010); FSM v. Fu Yuan Yu 096[2008] FMSC 41; , 16 FSM Intrm. 1, 3 (Pon. 2008); Geoffrey Hughes (Export) Pty, Ltd. v. America Ducksan Co., [2004] FMSC 18; 12 FSM Intrm. 413, 415 (Chk. 2004). This should make sense because a dismissal with prejudice is considered a ruling on the case's merits, Kitti Mun. Gov't v. Pohnpei, [2003] FMSC 19; 11 FSM Intrm. 622, 628 (App. 2003) (dismissal with prejudice constitutes a judgment on the merits); Livaie v. Kosrae Sea Ventures, Inc., [2001] FMSC 5; 10 FSM Intrm. 206, 209 (Kos. 2001) (under a dismissal with prejudice, a defendant secures the same relief it would have if the case had gone to trial and it had prevailed); Union Indus. Co. v. Santos, [1995] FMSC 41; 7 FSM Intrm. 242, 244 (Pon. 1995) (dismissal with prejudice of a plaintiff's prior action constituted a judgment on the merits, which then has a res judicata effect), and, if a court lacks subject-matter jurisdiction over a case, the court is without any authority to make any ruling on the merits. Accordingly, the "with prejudice" part of the trial court's dismissal was either reversible error or it only addressed the determination of the trial court's subject-matter jurisdiction, not the merits of the plaintiff's case. It has no effect.

Since this appeal is dismissed without a decision on the merits, we will not issue a mandate but will direct the appellate clerk to transmit a copy of this order to the trial division for insertion in the trial court file.

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