Kosrae Island Credit Union v Obet [1995] FMSC 32; 7 FSM Intrm. 193 (App. 1995) (6 July 1995)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Kosrae Island Credit Union v Obet, [1995] FMSC 32; 7 FSM Intrm. 193 (App. 1995)

KOSRAE ISLAND CREDIT UNION,
Appellant,

vs.

KALIS OBET, HEINRICH JACKSON, ELWEL PALIK, ELINA SIGRAH and CARON SIGRAH,
Appellees.

APPEAL CASE NO. K1-1995

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Decided: July 6, 1995

APPEARANCES:

For the Appellant:
Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

For the Appellee:
Charles Greenfield, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Lelu, Kosrae, FM 96944

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HEADNOTE

Appeal and Certiorari
A party appealing a decision of the Kosrae State Court must file a notice of appeal with the state court and with the FSM Supreme Court, either with its trial division on Kosrae or with its appellate division. Where appellant's failure to timely and properly his notice of appeal in the FSM Supreme Court trial division on Kosrae was because of faulty instructions of a court employee, dismissal of the appeal is unwarranted. Kosrae Island Credit Union v. Obet, [1995] FMSC 32; 7 FSM Intrm. 193, 194 (App. 1995).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On May 8, 1995, the Appellees moved to dismiss this appeal based on Appellant's failure to comply with the requirements of FSM Appellate Rule 3(a), which requires Appellant to file his notice of appeal with either the clerk of the FSM Supreme Court trial division in Kosrae or the clerk of the FSM Supreme Court appellate Division. Appellant admits that he did not file his Notice of Appeal in the manner required by FSM Appellate Rule 3(a), but argues that he should not be penalized since his mistake was based on directions provided by the FSM Supreme Court in Kosrae.

FSM Appellate Rule 3(a) states, in pertinent part, as follows:

FILING THE NOTICE OF APPEAL. 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. The notice of appeal must be filed within the time allowed by Rule 4 and the appellant shall serve copies of the notice upon all other parties to the litigation from which appeal is being taken.

In an appeal from any court other than the FSM Supreme Court trial division, the appellant shall also serve a copy of the notice of appeal upon the court appealed from. .
#160;.

In t>In the present appeal, Appellant is appealing the decision of the Kosrae State Court to the FSM Supreme Court appellate division. Accord, Appellant was required to file his notice of appeal with with either the FSM Supreme Court trial division in Kosrae, or with the FSM Supreme Court appellate division. Moreover, in Tafunsak v. Kosrae, [1994] FMSC 24; 6 FSM Intrm. 467 (App. 1994), this Court warned that "future appellants are put on notice . . . that the p procedure is t 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." u> at69.

I

It is t is undisputed that appellant did not file his notice of appeal directly with any division of the FSM Supreme Court. Appellant stated, however, that he attempted to timely file his notice of appeal with the Kosrae State trial division of the FSM Supreme Court but was instructed by an employee of that Court to file the notice in a different manner. Appellant claims that he followed those improper directions, and that his failure to properly and timely file his notice of appeal is a direct result of his following the improper directions.

Despite Appellees' claims that Appellant's proof is insufficient to demonstrate that the FSM Supreme Court trial division in Kosrae was responsible for Appellant's failure to properly file the notice of appeal in this case, the Court nonetheless feels that it must bear a portion of the responsibility in this case, and that a dismissal of Appellant's appeal is unwarranted under these circumstances. The facts of this case are different from those in Tafunsak because Appellant tried to follow the requirements of this Court's appellate rules but was led astray by the errant advice of this Court. The appellate division will not force the appellant to bear the penalty of the Court's own failure. Accordingly, it is hereby ordered that Appellees' motion to dismiss the appeal in this case is denied.