Senda v Creditors of Mid-Pacific Construction Co [1996] FMSC 23; 7 FSM Intrm. 520 (App. 1996) (22 July 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Senda v Creditors of Mid-Pacific Construction Co, [1996] FMSC 23; 7 FSM Intrm. 520 (App. 1996)

AMBROS SENDA,
Appellant,

vs.

CREDITORS OF MID-PACIFIC CONSTRUCTION CO.,
Appellees.

_________________________________________________

APPEAL NO. P2-1996

ORDER

Richard H. Benson
Associate Justice

Decided: July 22, 1996

APPEARANCES:

For the Appellant:
R. Barrie Michelsen, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Appellees:
Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813-3862

Carole Rafferty, Esq.
Chief of Litigation
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Appeal and Certiorari
When an appeal is taken from the trial court it is divested of authority to take any action except actions in aid of the appeal. This is a judge-made rule to avoid the confusion and inefficiency of putting the same issue before two courts at the same time. Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 23; 7 FSM Intrm. 520, 522 (App. 1996).

Appeal and Certiorari; Attorney, Trial Counselor and Client
When the attorney of record at the time of appeal obtains a later trial court order substituting another attorney who cannot address all the issues on appeal, the appellate court will direct the first attorney to proceed with the appeal. Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 23; 7 FSM Intrm. 520, 522 (App. 1996).

Appeal and Certiorari
If the FSM wishes to present the court with its views on an appeal it may file an amicus curiae brief as permitted by Rule 29 of the FSM Rules of Appellate Procedure. Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 23; 7 FSM Intrm. 520, 522 (App. 1996).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

After the Attorney General filed his Motion to Extend Time to File Appellate Brief on behalf of the appellees, the court requested the parties to submit memorandums as to the jurisdiction of the trial court to order a substitution of counsel for appellees. The sequence of events is this:

January 17, 1996	Order of Distribution entered by the trial court
February 16, 1996	Notice of Appeal of the judgment filed by appellant Senda
April 9, 1996	Notice of Record Ready Certificate issued by the clerk of the appellate division
May 6, 1996	Mr. Berman's Motion to Substitute and Withdraw as Counsel for appellees filed in the trial court
May 14, 1996	Appellant's Brief filed
June 7, 1996	Trial court order appointing substitute counsel
June 13, 1996	Due date for appellee's brief

In support of the trial court's order, Mr. Berman's memorandum lists many cases in which trial courts have taken action in cases which are on appeal. No case authority, however, is cited for the trial court substituting another in place of the attorney of record in the appeal, nor are the cases analyzed so as to invite an analogy.

Several of Mr. Berman's cases refer to the trial court action being "in aid of the appeal." There is no analysis of how the ordered substitution was in aid of this appeal nor is there any justification presented for bringing the motion in the trial court more than two months after the appeal was noticed.

The Attorney General of the FSM, the counsel substituted by the trial court, states that he will not appear for the appellees on one of the six issues listed in the appellant's brief.

The appellant and Mr. Berman agree that the general rule is that when an appeal is taken from the trial court it is divested of authority to take any action except actions in aid of the appeal. This is a judge-made rule to avoid the confusion and inefficiency of putting the same issue before two courts at the same time.

The substitution order has hindered this appeal because of the delay caused and because the substituted counsel will not meet all issues presented. If the Attorney General were appellate counsel, various conflict issues arise which this court would be forced to resolve. With these considerations before the court, I conclude that Mr. Berman remains counsel of record in this appellate case. He shall serve and file his brief 30 days after the service of this order upon him.

The Appellees' Motion to Extend Time to File Appellate Brief filed by the Attorney General is denied. The Attorney General's Notice of Appearance on behalf of the appellees is stricken. It appears that the Attorney General wants to represent the appellees "because the FSM is a creditor of Mid-Pacific Construction Co., Inc. and because one of the issues on appeal is whether the trial court has the power to order that certain funds escheat to the FSM National Government." If the FSM wishes to present the court with its views it may file an amicus curiae brief as permitted by Rule 29 of the FSM Rules of Appellate Procedure.