Paul v Celestine [1988] FMSC 3; 3 FSM Intrm. 572 (App. 1987) (11 October 1988)

[1988] FMSC 3; 3 FSM Intrm 572 (App 1987)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P2-1987

YOSIMI PAUL,
Appellant

V

BENANCE CELESTINE, AUGUSTINE LUZAMA
AND KOLONIA TOWN,
Appellees

BEFORE: The Honorable Richard H. Benson, Associate Justice, FSM Supreme Court

APPEARANCES: For the Appellant,
Roberta Lindberg; for the Appellees James Hagerstrom

HEARING: 29 July 1988 - JUDGMENT: October 11, 1988

HEADNOTE

Appeal and Certiorari
That fee arrangements had not been made is not good cause in support of a motion to enlarge time for filing appellees brief when the motion is filed well after the brief was due and after oral argument was held. Paul v. Celestine, [1988] FMSC 3; 3 FSM Intrm. 572, 574 (App. 1987).

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This matter came before the court on the motion of the Appellees for an order permitting an enlargement of time, pursuant to Rule 26(b), within which to file their brief. The ground upon which counsel relies is that fee arrangements have been made since oral argument so that he has now accepted the case.

The appellant does not oppose an enlargement, but does oppose the enlargement of 90 days that the appellees now request.

FACTS

The appellant filed his opening brief on March 14, 1988. Appellees' brief was due April 15, 1988. On April 29, 1988 the attorney for the appellees, Mr. James Hagerstrom, filed his motion for an enlargement of time within which to file a brief. This motion was not opposed, and the time was enlarged until June 20, 1988.

Between the filing of the motion on April 29th and oral arguments on July 29th, no brief or other pleading was filed by the appellees.

Counsel for the appellees did not appear for argument. The notice of setting oral argument had been served upon the appellees. Benance Celestine and Augustine Luzama appeared in person. The Town of Kolonia made no appearance.

The Court was informed by the appellant's counsel and by the Chief Clerk of Court that Mr. Hagerstrom had told each informally that he was no longer representing the appellees because fee arrangements had not been made.

Benance Celestine and Augustine Luzama requested time to obtain counsel. In support of this request each testified. They said that Mr. Hagerstrom had represented them and the Town of Kolonia at trial; that they had assumed that he would continue to represent them; that the Town of Kolonia had made the earlier arrangement for counsel; that Mr. Hagerstrom had not communicated with them after the trial with one exception; within the week prior to oral argument, Augustine Luzama had met Mr. Hagerstrom by chance at the Post Office, and Mr. Hagerstrom had said that he was not representing the appellees; and that Augustine Luzama had told this to Benance Celestine the following day.

This testimony is unrefuted, and we have no reason to doubt its truth. Based upon it, leave was granted to Benance Celestine and Augustine Luzama on July 29th to secure counsel within 8 days.

In the present motion counsel relies only on the circumstance that earlier fee arrangements were not fulfilled as he expected but that now firm arrangements have been entered into between the Town of Kolonia and himself. The motion fails to mention the circumstances of the individual Appellees.

RULING AND REASONING

The motion must be denied.

1. The order of the Court of July 29th granted leave only to Benance Celestine and Augustine Luzama to obtain counsel. The Town of Kolonia, having not appeared or requested leave, has no standing at this time to request an enlargement.

2. The ground upon which the motion is based simply does not constitute good cause within Rule 26(b) which reads in part, "The court for good cause shown may upon motion enlarge time prescribed by these rules or by its order for doing any act, or may permit an act to be done after expiration of such time ..."

SO ORDERED this 11th day of October, 1988.