Chuuk Public Utility Corp. v Chuuk Health Care Plan [2018] FMCSC 3; 22 FSM R. 38 (Chk. S. Ct. App. 2018) (7 September 2018)

CHUUK STATE SUPREME COURT APPELLATE DIVISION
CIVIL APPEAL NO. 01-2017

CHUUK PUBLIC UTILITIES CORPORATION,
Appellant,

vs.

CHUUK HEALTH CARE PLAN,
Appellee.
__________________________________________

ORDER DENYING MOTION

Larry Wentworth
Temporary Justice

Decided: September 7, 2018

APPEARANCES:

For the Appellant: Erick B. Divinagracia, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Appellee: Johnny Meippen, Esq.
Legal Counsel
Chuuk State Health Care Plan
P.O. Box 705
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review - Dismissal; Appellate Review - Motions
Although a single Chuuk State Supreme Court appellate division justice cannot dismiss or otherwise determine an appeal or other appellate proceeding, a single justice can deny a motion to dismiss, subject to review by the full panel. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 41 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
An appellant’s duty after filing a notice of appeal is to comply with the provisions of Rule 10(b) and to take any other action necessary to enable the clerk to assemble, certify and transmit the record. Within ten days of filing the notice of appeal, the appellant must order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary or, if no such parts of the proceedings are to be ordered, file a certificate to that effect. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 41 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
If the entire transcript is not ordered, the appellant must within 10 days of filing the notice of appeal, file a statement of the issues the appellant intends to present on the appeal and serve on the appellee a copy of the statement and of the transcript order or certificate of no transcript. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 41 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument; Appellate Review - Dismissal
When an appellant has ordered the entire transcript and has thus discharged its duty as an appellant, the alternative methods of creating a trial court record are unneeded or unusable, and there is no basis to dismiss the appeal for the appellant’s alleged failure to perform its duty. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 41-42 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
The court reporter’s duty is to prepare and file the transcript within 30 days or such longer time as the court reporter has requested and the appellate clerk has approved. When the transcript is complete, the reporter must file it with the trial court clerk, and, when the trial court record, including the transcript, is complete, the trial court clerk will transmit the record to the appellate clerk. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 42 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
Once the appellate clerk has received the record from the trial clerk, the appellate clerk must file it and immediately give notice to all parties of the date on which it was filed. The appellant’s opening brief is due within 40 days after the date on which the record is filed. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 42 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
Appellate Rule 31(a), and not the court, sets the times to file and serve appellate briefs. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 42 (Chk. S. Ct. App. 2018).

Appellate Review - Stay - Civil - Money Judgments
Whether an appeal’s pendency hampers a money judgment’s enforcement or collection usually depends on whether a stay has been granted. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 42 (Chk. S. Ct. App. 2018).

Appellate Review - Briefs, Record, and Oral Argument
When the court reporter has not completed the transcript, the trial court clerk cannot transmit the certified record to the appellate clerk, and, when there is no certified record with the appellate clerk, the briefing schedule will not start. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 22 FSM R. 38, 42 (Chk. S. Ct. App. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Temporary Justice:

This comes before the court on 1) the appellee’s Motion to Dismiss Appeal; Alternatively, Motion for an Order Requiring the Parties to Designate Record on Appeal and to File Appellate Briefs, filed May 14, 2018; 2) the appellant’s Motion for Enlargement of Time, filed May 28, 2018; and 3) CPUC’s Opposition to Appellee’s Motion to Dismiss, filed May 28, 2018. (These filings only recently came to the court’s attention.)

The appellant, Chuuk Public Utilities Corporation ("CPUC"), asks that the seven-day time frame to respond to a motion, Chk. App. R. 27(a), be enlarged to fourteen days so that its May 28, 2018 opposition is timely, because its counsel was traveling during the response time and unable to respond. No opposition to the enlargement motion was filed and good cause was shown, NOW THEREFORE IT IS HEREBY ORDERED that the motion to enlarge is granted and that CPUC’s May 28, 2018 opposition is deemed timely.

I. BACKGROUND OF MOTION TO DISMISS

The appellee, the Chuuk Health Care Plan ("the Plan") moves to dismiss this appeal because, in its view, CPUC has failed to discharge its responsibilities as an appellant. Specifically, the Plan contends that CPUC has failed to bring the appeal to a stage where it can be heard by neglecting to assure that an adequate record or report of the evidence or proceedings is available for appellate review. The Plan states that CPUC has done nothing other than file a March 2017 notice of appeal and order a transcript of the trial court proceeding. The Plan contends that, since the parties, in the trial court, submitted trial briefs on CPUC’s counterclaims, in lieu of a trial, no trial court transcript is needed and that CPUC is using the pendency (and dormancy) of this appeal "to bury away" the Plan’s large money judgment against it. The Plan therefore asks the court to either immediately dismiss the appeal or, in the alternative, to direct that CPUC ensure that the record is available (if not with a transcript, then with its statement of the trial court evidence and proceedings from the best available means, including a prepared statement or recollection) within a definite time, and to set dates to file briefs.

CPUC states that it has taken steps to ensure the existence of an adequate record. It responds that it has complied with Appellate Rule 10(b), by making its transcript request within ten days of filing its notice of appeal, and that it can do nothing further to move this appeal forward until the clerk has certified the trial court record, and the clerk has not yet informed the parties that the record has been certified. CPUC asserts that it has been working diligently behind the scenes to discharge its duties by requesting updates on its transcript request and offering to make any required payments, but the answer has always been that it would be informed when the transcript and the record were ready.

II. SINGLE JUSTICE’S POWER TO RULE ON A MOTION TO DISMISS

The primary relief that the Plan seeks is the dismissal of this appeal. Under Appellate Rule 27(c),

a single justice of the State Court Appellate Division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single Justice may not dismiss or otherwise determine an appeal or other proceeding . . .&. Thion of a of a singleingle justice may be reviewed by the court.

Although a single Chuuk State Supreme Court appellate division justice cannot ds or wise determine an appeal or other appellate proceproceedingeding, the court concludes that a single justice can deny a motion to dismiss.

Support for this proposition may be found in FSM Supreme Court jurisprudence. That court’s Appellate Rule 27(c) allows an FSM Supreme Court single justice to dismiss an appeal "upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of these rules." FSM App. R. 27(c). No such provision is contained in the Chuuk State Supreme Court Appellate Rules. A Chuuk State Supreme Court single appellate justice cannot dismiss an appeal. An FSM Supreme Court single appellate justice may deny a motion to dismiss brought on any ground, but can only grant one, subject to review by a full panel, when all parties have stipulated to a dismissal or when the appellant has not complied with the FSM Appellate Rules’ timing requirements. Nena v. Saimon, 19 FSM R. 136, 138 (App. 2013) (single FSM Supreme Court appellate division justice may not dismiss an appeal other than on all the parties’ stipulation or for a party’s failure to comply with the appellate rules’ timing requirements, but a single justice may deny a motion to dismiss an appeal); Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209 (App. 2012) (single justice may deny a motion to dismiss an appeal; the denial is a procedural order requiring the appeal to be briefed and put on the calendar; not a determination having preclusive effect on the appeal’s validity; denial remains subject to the full appellate panel’s correction); Pohnpei v. AHPW, Inc., 14 FSM R. 1, 12 (App. 2006) (single appellate judge’s order denying a motion to dismiss an appeal is a procedural order requiring appeal to be briefed and put on the calendar; it is not a determination having preclusive effect on the appeal’s validity).

The United States Federal Appellate Rule 27(c) is very similar to the Chuuk Appellate Rule 27(c). Like the Chuuk rule, it does not contain a provision allowing a single justice to dismiss an appeal on any ground. Nevertheless, United States jurisprudence permits a single appellate justice to deny a motion to dismiss, subject to review by a full panel. A single U.S. federal appellate judge’s order denying a motion to dismiss an appeal is a procedural order requiring the appeal to be briefed and put on the calendar. Pioneer Properties, Inc. v. Martin, [1985] USCA10 289; 776 F.2d 888, 890 (10th Cir. 1985) (single justice’s denial of a motion to dismiss is not a determination having preclusive effect on the appeal’s validity; full panel may review); see also Fieldturf, Inc. v. Southwest Recreational Indus., Inc., [2004] USCAFED 26; 357 F.3d 1266, 1268 (Fed. Cir. 2004) (single appellate justice may deny motion to dismiss, but that denial does not become law of the case; full panel may review).

III. APPELLANT’S DUTY CONCERNING THE RECORD AND FILING BRIEFS

The appellant’s duty after filing a notice of appeal is to "comply with the provisions of Rule 10(b) and [to] take any other action necessary to enable the clerk to assemble, certify and transmit the record." Chk. App. R. 11(a). Within ten days of filing the notice of appeal, the appellant must "order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary. . . . If no such parts of thceproceedings are to be ordered, within the same period the appellant shall file a certificate to that effect." Chk. App. R. 10(b)(1). But, "[u]nless the entire transcript is to be incl" an lant must also wiso within thin that 10 days, "file a statement of the issues he intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement." Chk. App. R. 10(b)(3).

On March 28, 2017, CPUC ordered "the entire transcript." CPUC therefore discharged its duty as an appellant. The alternative methods of creating a trial court record - an agreed statement by the parties as to the record on appeal, Chk. App. R. 10(d), or an appellant’s statement of evidence or proceedings when no transcript is available, Chk. App. R. 10(c) - are thus unneeded or unusable. There is thus no basis to dismiss this appeal for the appellant’s alleged failure to perform its duty. The Plan’s motion to dismiss is therefore denied.

It is the court reporter’s duty to prepare and file the transcript within 30 days or such longer time as the court reporter has requested and the appellate clerk has approved. Chk. App. R. 11(b). When the transcript is complete, the reporter will file it with the trial court clerk, and, when the trial court record, including the transcript, is complete, the trial court clerk will transmit the record to the appellate clerk. Id. Once the appellate clerk has received the record from the trial clerk, the appellate clerk will file it and must "immediately give notice to all parties of the date on which it was filed." Chk. App. R. 12(b). The appellant’s opening brief is due "within 40 days after the date on which the record is filed." Chk. App. R. 31(a).

Appellate Rule 31(a), and not the court, sets the times to file and serve appellate briefs. The court will therefore decline to grant the Plan’s alternative motion. The court also notes that whether an appeal’s pendency hampers a money judgment’s enforcement or collection usually depends on whether a stay has been granted.

Apparently, the court reporter has not completed the transcript. The trial court clerk, therefore, has not transmitted, and cannot transmit, the certified record to the appellate clerk. Since there is no certified record with the appellate clerk, the briefing schedule will not start.

The record certification and transmittal seem to be taking an inordinately long time, if the record is as unsubstantial as the Plan seems to claim it to be. The court therefore orders the trial court clerk to file and serve, on October 3, 2018, a report on the progress made so far on certifying the record, including completing the transcript. If the record is certified and transmitted to the appellate clerk before that date, no progress report need be filed.

IV. CONCLUSION

Accordingly, the Chuuk Health Care Plan’s motion to dismiss Chuuk Public Utilities Corporation’s appeal is denied, as is its alternative motion to set filing dates for briefs. The trial court clerk shall, on October 3, 2018, file and serve a progress report on the record preparation of this case if the record has not been certified and transmitted to the appellate clerk by then.

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