Damarlane v United States of America [1997] FMSC 31; 8 FSM Intrm. 14 (App. 1997) (16 January 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Damarlane v United States of America, [1997] FMSC 31; 8 FSM Intrm. 14 (App. 1997)

IGNACIA DAMARLANE et al.,
Appellants,

vs.

UNITED STATES OF AMERICA, on its own and in the place of the
GOVERNMENT OF THE TRUST TERRITORY OF THE PACIFIC ISLANDS,
FEDERATED STATES OF MICRONESIA,
POHNPEI STATE and POHNPEI TRANSPORTATION AUTHORITY,
Appellees.

APPEAL CASE NO. P1-1996

ORDER DISMISSING APPEAL

Decided: November 25, 1996
Rehearing Denied: January 16, 1997

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Ramon G. Villagomez, Temporary Justice, FSM Supreme Court*

*Associate Justice, Supreme Court of the Commonwealth of the Northern Marianas, Saipan, CNMI

APPEARANCES:

For the Appellants:
Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Appellee (United States):
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

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

For the Appellees (Pohnpei & PTA):
Todd Richards, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari; Jurisdiction
As a general rule, a properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court, but a trial court may retain jurisdiction over the issue of attorneys' fees even though an appeal is pending on the merits of the case. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 16 (App. 1997).

Appeal and Certiorari; Costs; Jurisdiction
A trial court has jurisdiction to issue an order assessing costs, even though it was issued after the notice of appeal was filed. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 17 (App. 1997).

Appeal and Certiorari; Jurisdiction
A policy of judicial economy dictates against allowing further piecemeal appeals when the appeal in question arises from the same civil action and involves the same or similar questions of law. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 17 (App. 1997).

Appeal and Certiorari - Rehearing
There is no basis on which to grant a motion for rehearing when the court has not overlooked or misapprehended points of law or fact and has not relied on cases not on point and has not deprived appellants of their right to appeal specific costs. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 18 (App. 1997).

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COURT'S OPINION

PER CURIAM:

INTRODUCTION AND BACKGROUND

On October 5, 1995, appellants filed a notice of appeal in Appeal No. P6-1995 with this Court. On January 16, 1996, appellants filed a notice of appeal in Appeal No. P1-1996. Appellee United States moved to consolidate Appeal Nos. P1-1996 and P6-1995. This request was granted by the Court on February 26, 1996. On April 8, 1996, the Trial Division granted appellee United States' motion to tax costs and allowed costs totalling $3,132.70. On April 23, 1996, plaintiffs filed a notice of appeal from the April 8, 1996, order. This was docketed by the Clerk of the Court under Appeal No. P1-1996.

On September 25, 1996, the Court issued an order requesting memoranda of points and authorities on whether the issue raised in the April 23, 1996, notice of appeal is the same issue as has already been raised and argued in the briefs filed with the Court prior to oral argument in Appeal No. P6-1995, as consolidated with Appeal No. P1-1996. On October 7, 1996, after filing a motion to enlarge the time within which to respond, which was granted by the Court in a separate order, appellants filed their memorandum.

Appellants argue that the Trial Division lacked jurisdiction to issue the April 1996 order. Specifically, appellants argue that when the appeal was perfected, it divested the Trial Division of jurisdiction over the cause of action and transferred jurisdiction to this Court. Therefore, appellants argue, the judgment entered by the Trial Division is void. Appellants also argue that the appeal of the April 1996 order may be dismissed later if the Appellate Division's decision as to costs disposes of the same issue. Therefore, appellants argue, since a decision on the matter will dispose of the issue, the matters need not be consolidated.

On October 21 and 22, 1996, appellees filed their responses. Appellee the United States moves to consolidate the issues as to costs. The United States notes that appellants did not previously object to the jurisdiction of the Trial Division to issue the order as to costs after the appeal was perfected. The United States argues that the Trial Division did have jurisdiction over the award of costs and attorney's fees, notwithstanding a pending appeal. The United States further argues that, under Rule 42 of the FSM Rules of Civil Procedure, the issue of costs arises from the same Trial Division civil action and the appeals each involve common questions of law. Finally, the United States argues that appellants have not shown any prejudice that would be caused by consolidation, and that the judicial economy of the Court would be served in reducing copies, notices, and the expense of reconvening another appellate panel.

Appellee the FSM argues that appellants have waived their right to raise the question of the Trial Division's jurisdiction to issue the April 1996 order taxing costs. Therefore, the FSM argues, the Appellate Division should not reach the merits of the procedural issue in deciding whether to consolidate the appeals. Alternatively, the FSM argues, the appeals should be consolidated in order to avoid piecemeal handling of the matter. Finally, the FSM notes that appellants have conceded that the issue in both appeals is the same and concerns the power of the Trial Division to tax costs.

Appellee the State of Pohnpei joins in and incorporates by reference the memoranda of appellees the United States and the FSM. The State of Pohnpei also filed a motion to substitute counsel and to appear in a particular case. These motions have been granted by the Court in a separate order.

DISCUSSION

Appellants argue that the Trial Division did not have jurisdiction to issue the order assessing costs once the Appellate Division took jurisdiction. As a general rule, a properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. See Election Commissioner v. Petewon, [1994] FMCSC 2; 6 FSM Intrm. 491, 1 CSR 5 (Chk. S. Ct. App. 1994). However, the Court has looked for guidance in appellate decisions of the United States and has found a number of cases which hold that a trial court may retain jurisdiction over the issue of attorneys' fees even though an appeal on the merits of the case is pending. For example, See City of Chanute v. Williams Natural Gas Co., [1992] USCA10 296; 955 F.2d 641, at 658 (10th Cir. 1992).[1] See also Harris Market Research v. Marshall Marketing & Communications, [1991] USCA10 1135; 948 F.2d 1518, 1526 n.3 (10th Cir. 1991) (motions for attorneys' fees treated as a procedural and ministerial function over which the district court retains jurisdiction, even if an appeal is pending); Trustees of the Chicago Truck Drivers' Pension Fund v. Central Transp., Inc., [1991] USCA7 494; 935 F.2d 114, 120 (7th Cir. 1991) (a notice of appeal does not prevent the court from handling collateral matters such as the award of costs); Lorenz v. Valley Forge Ins. Co., [1994] USCA7 536; 23 F.3d 1259, 1260 (7th Cir. 1994) (costs are appealable separately from the merits; a district court may award costs even while the substantive appeal is pending); Terket v. Lund, [1980] USCA7 410; 623 F.2d 29 (7th Cir. 1980) (district courts have jurisdiction to rule on post-judgment motions for attorneys' fees during a pending appeal). Therefore, this Court finds that the Trial Division in the instant matter had jurisdiction to issue an order assessing costs, notwithstanding the fact that it was issued after the notice of appeal was filed.

Having said that, the Court must next address whether consolidation of the appeals is in order, or whether the appeal filed on April 23, 1996, should be dismissed. Although appellants argue, in their reply brief, that the new appeal is based on a legal theory and reasoning that is different factually from those presented in this appeal, they have provided no support for that argument. Quite simply, all of the issues raised in the April 23, 1996, notice of appeal arose from the same civil action, and involve the same or similar questions of law, that is, whether the Trial Division correctly taxed costs against appellants. We conclude that our opinion in the underlying appeal will dispose of the matter.

Further, the parties have had ample opportunity to brief the issue, both in the original and reply briefs, and in the memoranda of points and authorities requested by the Court. The Court finds that there is no need for additional briefing or further oral argument on this question, and that a policy of judicial economy dictates against allowing further piecemeal appeal in this matter. Accordingly, the Court can find no reason that the appeal filed on April 23, 1996, should not be dismissed at this time, and the issues therein resolved in the opinion which we shall issue on the underlying appeal.

Based on the foregoing, the appeal filed on April 23, 1996, is hereby dismissed.

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INTRODUCTION

On October 5, 1995, appellants filed a notice of appeal in Appeal No. P6-1995 with this Court. On January 16, 1996, appellants filed a notice of appeal in Appeal No. P1-1996. Appellee United States moved to consolidate Appeal Nos. P1-1996 and P6-1995. This request was granted by the Court on February 26, 1996. On April 8, 1996, the Trial Division granted appellee United States' motion to tax costs and allowed costs totalling $3,132.70. On April 23, 1996, plaintiffs filed a notice of appeal from the April 8, 1996, order. This was docketed by the Clerk of the Court under Appeal No. P1-1996.

On September 25, 1996, the Court issued an order requesting memoranda of points and authorities on whether the issue raised in the April 23, 1996, notice of appeal is the same issue as has already been raised and argued in the briefs filed with the Court prior to oral argument in Appeal No. P6-1995, as consolidated with Appeal No. P1-1996. The parties complied. On November 25, 1996, the Court entered an order dismissing the appeal filed on April 23, 1996.

On December 16, 1996, appellants filed a petition for rehearing pursuant to FSM Appellate Rule 40, governing petitions for rehearing. Appellants argue that the trial court was divested of all jurisdiction to award costs, and that the Court's order dismissing the April 23, 1996, appeal relied upon cases that were not on point. Appellants also argue that the Court's order dismissing the appeal deprives appellants of their right to appeal the trial court's award of specific costs.

DISCUSSION

Rule 40 of the FSM Rules of Appellate Procedure provides, in pertinent part: "A petition for rehearing . . . shall state with particularity the points of law or fact which in the opinion of petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present."

Appellants' petition states with particularity those points of law or fact which appellants believe the Court has overlooked or misapprehended. However, appellants do not make any argument, cite to any rule, or raise any issue not previously considered by the Court, nor is the Court of the opinion that it has relied upon cases not on point or deprived appellants, in some manner, of their right to challenge specific items of costs. As noted previously, the issues raised in the April 23, 1996, appeal are, if not identical, substantially similar to the issues which are currently pending before the Court in the underlying appeal. Therefore, the Court finds no basis upon which to grant rehearing.

Appellants' petition for rehearing is hereby denied.

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^[1] The judicial guidance clause, article XI, section 11, of the Constitution, cautions against simply adopting previous interpretations of other jurisdictions without careful analysis of its application to the circumstances of the Federated States of Micronesia. Luda v. Maeda Road Constr. Co., [1985] FMSC 20; 2 FSM Intrm. 107, 112 (Pon. 1985). Nonetheless, the FSM Supreme Court may consider decisions and reasoning of courts in the United States and other jurisdictions in arriving at its own decisions. Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 212-13 (App. 1982). We have considered application of the reasoning in the cited cases to the FSM, and consider it to be persuasive.