Tafunsak v Kosrae [1994] FMSC 24; 6 FSM Intrm. 467 (App. 1994) (10 August 1994)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K6-1992

TAFUNSAK MUNICIPALITY,
Appellant,

vs.

STATE OF KOSRAE and the
GOVERNOR OF KOSRAE,
Appellees.
____________________________________

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided: August 10, 1994

APPEARANCES:

For the Plaintiffs: Nina Eejima
P.O. Box 38
Tofol, Kosrae FM 96944

For the Defendants: Tim Stumpff, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box AG
Lelu, Kosrae FM 96944

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HEADNOTE

Appeal and Certiorari
The proper procedure, in accordance with Kosrae State law and the FSM appellate rules, in filing a notice of appeal from a decision of the Kosrae State Court is to file notice in both Kosrae State Court and the FSM Supreme Court, either with the trial division in Kosrae or directly with the appellate division. Tafunsak v. Kosrae, [1994] FMSC 24; 6 FSM Intrm. 467, 468 (App. 1994).

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COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

On June 3, 1994, this Court entered an order denying appellees' motion to dismiss the appeal. This memorandum is issued to explain the reasoning of that decision.

The appellees moved to dismiss this case for failure of the appellant, Tafunsak Municipality, to file and serve a proper notice of appeal under FSM Appellate Rule 3(a). The appellant did file a timely notice of appeal, but in Kosrae state court, the court in which the trial level order appealed from was rendered. Appellant argues that it acted pursuant to state law, K.C. § 6.401, which requires the notice of appeal to be filed in Kosrae state court.^[1] Tafunsak admits it did not file its notice of appeal in either the FSM Supreme Court trial division in Kosrae or the FSM Supreme Court appellate division, but argues that appellees were not prejudiced because they were served with a copy of the notice of appeal filed in Kosrae State Court.

The question concerning the proper court to file notices of appeal in Kosrae cases appears to be one of first impression. FSM Appellate Rule 3(a) requires that:

An appeal permitted by these rules shall be taken by filing a notice of appeal with the clerk of the FSM Supreme Court trial division in the state in which the decision appealed from was made or, at the option of the appellant, directly with the clerk of the FSM Supreme Court appellate division . . .n approm any cany court other than the FSM Supreme Court trial division, the appellant shall also serve a copthe n of appeal upon the court appealed from.

(emphasis added). Since our our rule rule requires that a notice be filed with Kosrae state court when an appeal is made from that court, it is compatible with Kosrae state law K.C. §6.401. However, our rule clearly also requires that a notice be filed with either the trial division of this Court on Kosrae or our appellate division. Therefore our rule imposes an additional requirement on Kosrae appellants beyond that of K.C. § 6.401. It is this additional requirement that appellant has not met in this case.

A review of our past practice regarding Kosrae notices of appeal reveals that in the majority of cases a notice was filed directly with the appellate division. In some cases a notice was filed only in the trial division of this court in Kosrae. In other cases a notice was filed in both Kosrae State Court and either the appellate division or the Kosrae trial division of this court, the correct procedure according to our rule and Kosrae state law. In a few past cases a notice was filed only in Kosrae State Court. No challenge was raised in any prior case concerning in which court to file notice.

Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. See Nakamura v. Bank of Guam (I), [1993] FMSC 37; 6 FSM Intrm. 224 (App. 1993). The Court does not believe that the procedural error in this case warrants dismissal, particularly since the Court has allowed appeals in the past in Kosrae cases where notice was filed only in state court. However, future appellants are put on notice with this memorandum that the proper procedure is to file a notice of appeal in both Kosrae state court and the FSM Supreme Court, either with this Court's trial division in Kosrae or the appellate division in Pohnpei.

For the foregoing reasons the appellees' motion to dismiss is denied.

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^[1] K.C. § 6.401 states: "A person makes an appeal by filing a notice of appeal with the court within thirty days of receipt of notice of the . . . entry of judgmende orr deor decree to be appealed from, or within a longer time prescribed by rule." K.C. § 1.201 defines "court" as the Kosrae State Court. The same sectifinesellate court" as the appellate division of the FShe FSM SupM Supreme Court.