Santos v Bank of Hawaii [2000] FMSC 28; 9 FSM Intrm. 306 (App. 2000) (21 January 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Santos v Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306 (App. 2000)

EDWEL H. SANTOS,
Appellant,

vs.

BANK OF HAWAII,
Appellee.

___________________________________

APPEAL CASE NO. P1-1999

BEFORE:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

*Acting Chief Justice, Kosrae State Court, Lelu, Kosrae

ORDER

Decided: January 21, 2000

APPEARANCE:

For the Appellee:
Michael A. White, Esq.
White, Pierce, Mailman & Nutting
P.O. Box 5222 CHRB
Saipan, MP 96950

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HEADNOTES

Costs
A prevailing party in an appeal is routinely entitled to its costs and when an appeal is dismissed, costs are to be taxed against appellant unless the parties otherwise agree or court orders otherwise. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 307 (App. 2000).

Attorney, Trial Counselor and Client - Fees; Costs
Attorney's fees are not recoverable as costs under Appellate Rule 39. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 307 (App. 2000).

Appeal and Certiorari
When an FSM appellate rule has not be construed by the FSM Supreme Court and is similar or nearly identical to a U.S. counterpart, the court may look to U.S. practice for guidance. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 n.1 (App. 2000).

Appeal and Certiorari - Briefs and Record; Costs
It is the appellant's duty to prepare and file the appendix. But when the appellant has failed to prepare and file the appendix and the appellee instead does so, and the appellee prevails, the cost of producing copies of the appendix may be taxed in the appellee's favor. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 n.2 (App. 2000).

Costs
Appellate Rule 39(c) permits the recovery of costs for producing necessary copies of briefs by word processor or photocopier, but not the costs for producing the original. The maximum amount allowable for word processed copies of briefs is limited to the amount allowed for photocopy services. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 (App. 2000).

Costs
On appeals, copying costs are disallowed to the extent that they exceed those generally charged for such work in the area where the clerk's office is located, in this case - Pohnpei, where the FSM appellate clerk's office is located. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 (App. 2000).

Costs
Expenses for postage and courier services are disallowed. They are not a part of the usual costs recoverable under Appellate Rule 39. Santos v. Bank of Hawaii, [2000] FMSC 28; 9 FSM Intrm. 306, 308 (App. 2000).

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COURT'S OPINION

PER CURIAM:

Our opinion and judgment dismissing this appeal was entered on December 17, 1999 and served December 20, 1999. On January 11, 2000, the appellee, and thus the prevailing party, Bank of Hawaii, filed its Motion to Fix Costs. No objection has been filed. The Bank seeks a total of $2,814.70, of which $2,632.50 is its attorney's fees.

A prevailing party in an appeal is routinely entitled to its costs. FSM App. R. 39(a) (when appeal dismissed, costs to be taxed against appellant unless parties otherwise agree or court orders otherwise). Attorney's fees are not recoverable as costs under Appellate Rule 39. See, e.g., Mills ex rel. Mills v. Freeman, [1997] USCA11 1780; 118 F.3d 727, 735 n.5 (11th Cir. 1997); Kelley v. Metropolitan County Bd. of Educ., 773 F.2d 677 (6th Cir. 1985) (award of costs pursuant to Rule 39(a) separate and distinct from and totally unrelated to award of attorney's fees); Environmental Defense Fund, Inc. v. Environmental Protection Agency, [1982] USCADC 19; 672 F.2d 42, 61 (D.C. Cir.1982) ("Rule 39(c) covers only "costs" not attorneys' fees."); Robinson v. Kimbrough, [1981] USCA5 1106; 652 F.2d 458, 463 & n.7 (5th Cir. 1981) (Rule 39 refers only to the usual costs of appeal, expenses of docketing, preparing and filing briefs and records); see also 16A Charles Alan Wright et al., Federal Practice and Procedure § 3985, at 713-15 (1999) (costs recoverable are docketing fees, costs of producing necessary copies of briefs, appendices, records, exhibits, transcripts; attorneys fees only recoverable if authorized by statute).^[1] If the Bank believes it is entitled to reasonable attorney's fees for this appeal pursuant to some provision of contract or law, it may apply to the trial division for a determination. Senda v. Creditors of Mid-Pacific Constr. Co., [1996] FMSC 18; 7 FSM Intrm. 664, 674 (App. 1996).

The Bank seeks to recover $140.80 for 704 photocopies at 20¢ each. "The cost of printing or otherwise producing necessary copies of briefs, appendices or copies of records shall be taxable in the Supreme Court appellate division at rates not higher than those generally charged for such work in the area where the clerk's office is located." FSM App. R. 39(c). The Bank's successful motion to dismiss and related papers consisted of a total of sixteen pages. The Bank's brief consisted of twenty printed pages including cover, tables and certificate of service. This makes a total of thirty-six pages for the motion and brief. The Bank's appendix, made necessary because the appellant did not file an appendix,^[2] consisted of sixty printed pages including cover, tables and certificate of service. An original and three copies of briefs, FSM App. R. 31(b), and motions, FSM App. R. 27(d), and four copies of appendices, FSM App. R. 30(a), must be filed with the court, and a copy of each must be served on all other parties, FSM App. R. 27(a), 30(a), 31(b). In addition, a copy for the client and an additional copy for counsel's use would be needed. Because there is only one other party to this appeal, this makes a total of six necessary copies of briefs and motions (plus one original of each) and seven necessary copies of the appendix.

Rule 39(c) permits the recovery of costs for producing necessary copies of briefs by word processor or photocopier, but not the costs for producing the original. Intercontinental Apparel, Inc. v. Danik, Inc., [1985] USCADC 424; 777 F.2d 775, 775 (D.C. Cir. 1985); CTS Corp. v. Piher Int'l Corp., [1984] USCAFED 129; 754 F.2d 972, 973 (Fed. Cir. 1985). "[T]he maximum amount allowable for word processed copies of briefs [is] limited to the amount allowed for photocopy services." Danik, 777 F.2d at 775 n.1 (emphasis in original). Thirty-six pages for the brief and motion times the six copies equals 216. Seven copies of the appendix times sixty pages equals 420. This equals a total of 636 copies for which costs are recoverable. Copying costs are disallowed to the extent that they exceed "those generally charged for such work in the area where the clerk's office is located," FSM App. R. 39(c), in this case - Pohnpei, where the appellate clerk's office is located. Cf. Nena v. Kosrae (III), [1994] FMSC 33; 6 FSM Intrm. 564, 569 (App. 1994). The usual charge for photocopies by businesses on Pohnpei is 10¢ per page. The Bank has asked for 20¢ a copy. The Bank may therefore recover only 10¢ a copy, which multiplied by 636 copies equals $63.60.

The Bank also seeks to recover $41.40 for postage and courier services. Expenses for postage and courier services are disallowed. Cf. Damarlane v. United States, [1996] FMSC 57; 7 FSM Intrm. 468, 470 (Pon. 1995), aff'd[1997] FMSC 33; , 8 FSM Intrm. 45 (App. 1997). They are not a part of the usual costs recoverable under Rule 39. See 16A Wright et al., supra, § 3985, at 713.

Therefore in accordance with the foregoing the appellate clerk shall tax costs against appellant Edwel H. Santos in favor of appellee Bank of Hawaii in the amount of $63.60.

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^[1] When an FSM appellate rule has not be construed by the FSM Supreme Court and is similar or nearly identical to a U.S. counterpart, the court may look to U.S. practice for guidance. See, e.g., Iriarte v. Etscheit, [1998] FMSC 3; 8 FSM Intrm. 231, 235 (App. 1998); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992).

^[2] It is the appellant's duty to prepare and file the appendix. FSM App. R. 30(a). But when the appellant has failed to prepare and file the appendix and the appellee instead does so, and the appellee prevails, the cost of producing copies of the appendix may be taxed in the appellee's favor. Cf. Fisher v. Krajewski, [1989] USCA7 439; 873 F.2d 1057, 1069 (7th Cir. 1989) (when appellant failed to file needed transcript of lower court proceeding, although it was his responsibility to do so, and appellee did so and appellee prevailed on appeal, appellee entitled to cost of preparing transcript as part of costs of appeal).