Ting Hong Oceanic Enterprises v Federated States of Micronesia [1998] FMSC 7; 8 FSM Intrm. 264 (App. 1998) (9 March 1998)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Ting Hong Oceanic Enterprises v Federated States of Micronesia, [1998] FMSC 7; 8 FSM Intrm. 264 (App. 1998)

TING HONG OCEANIC ENTERPRISES CO., LTD.,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P2-1997
[on appeal from Crim. Case No. 1994-502]

ORDER OF DISMISSAL

Richard H. Benson
Associate Justice

Dismissed: March 9, 1998

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HEADNOTE

Appeal and Certiorari - Briefs and Record; Constitutional Law - Due Process - Notice and Hearing
When an appellant has failed to comply with the appellate rules' timing requirements for filing its opening brief, a single article XI, section 3 justice may, on his own motion, dismiss the appeal after the appellant has been afforded its constitutional due process right to notice and an opportunity to be heard. Ting Hong Oceanic Enterprises v. FSM, [1998] FMSC 7; 8 FSM Intrm. 264, 265 (App. 1998).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On April 1, 1997, John P. Hollinrake, attorney for Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong), filed a notice of appeal from the judgment entered by the trial division on March 26, 1997, in Criminal Case No. 1994-502, FSM v. Ting Hong Oceanic Enterprises Co., Ltd. See FSM v. Ting Hong Oceanic Enterprises, [1997] FMSC 40; 8 FSM Intrm. 166 (Pon. 1997). On September 30, 1997, the Chief Clerk of Court issued his Notice of Record Ready, and served it upon Mr. Hollinrake the same day. That notice, in compliance with the provisions of Appellate Rule 12(b), stated that the appellant's brief and appendixes were to be filed within forty days of the notice, on or before November 10, 1997. No brief was filed by then.

On January 26, 1998, on my own motion, I issued an order, noting that no brief had been filed and that the court intended to dismiss the appeal unless, by March 2, 1998, the appellant could show cause why it should not be dismissed. That order was served on both the Hollinrake law firm and on Randall F. Cunliffe, Esq., of Agaña, Guam, who, on several occasions, John Hollinrake had informed court personnel would be handling the appeal.

That deadline has passed. No one has filed anything on Ting Hong's behalf. Under our appellate rules, a single article XI, section 3 justice may entertain motions, but "may not dismiss or otherwise determine an appeal, except . .&#160on failure of a partyparty to comply with the timing requirements of these [appellate] rules." FSM App. R. 27(c). An appellant is required to file its brief within 40 days of the date of the clerk's record ready certificate. FSM App. R. 12(b), 31(a). Ting Hong has not complied with this timing requirement. Ting Hong has been given notice of the court's own motion to dismiss for failure to comply with the appellate rules' timing requirements and given an opportunity to be heard. That opportunity was forgone. Constitutional due process requirements of notice and an opportunity to be heard having been complied with, Ting Hong's appeal, filed April 1, 1997, is hereby dismissed.

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