Federated States of Micronesia Development Bank v Louis Family Inc [2002] FMSC 16; 10 FSM Intrm. 636 (Chk. 2002) (15 May 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as FSM Dev. Bank v. Louis Family, Inc.
[2002] FMSC 16; 10 FSM Intrm. 636 (Chk. 2002)

[2002] FMSC 16; [10 FSM Intrm. 636]

FEDERATED STATES OF MICRONESIA
DEVELOPMENT BANK,
Plaintiff,

vs.

LOUIS FAMILY, INC.,
Defendant,

vs.

R. BARRIE MICHELSEN,
Real Party in Interest.

CIVIL ACTION NO. 1994-1008

ORDER DENYING MOTIONS

Richard H. Benson
Specially Assigned Justice

Decided: May 15, 2002

[10 FSM Intrm. 637]

APPEARANCES:

For the Plaintiff:
James Woodruff, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Real Party in Interest:
R. Barrie Michelsen, Esq., pro se
P.O. Box 248
Koror, Palau PW 96940

* * * *

HEADNOTES

Appeal and Certiorari - Notice of Appeal
Generally, a notice of appeal acts to transfer jurisdiction from the trial court to the reviewing court, with some exceptions all characterized as acts in aid of the appeal, such as motions for release from jail pending appeal, for a stay pending appeal, to proceed in forma pauperis on appeal, to tax costs, and the trial court may both consider and deny Rule 60(b) relief from judgment motions, but cannot grant one unless the case is remanded. FSM Dev. Bank v. Louis Family, Inc., [2002] FMSC 16; 10 FSM Intrm. 636, 638 (Chk. 2002).

Appeal and Certiorari - Notice of Appeal
A trial court is without jurisdiction or authority to strike a notice of appeal from the record, no matter how inadequate the notice is, because it raises a question addressed to the appellate court's jurisdiction and the notice of appeal's filing transfers jurisdiction to the appellate court. FSM Dev. Bank v. Louis Family, Inc., [2002] FMSC 16; 10 FSM Intrm. 636, 638 (Chk. 2002).

Appeal and Certiorari - Dismissal
An appellee's trial court motion to dismiss an appeal on the ground that it is moot must be denied for want of jurisdiction of the trial court to rule upon it. It is a matter for the appellate division to consider, if raised there. FSM Dev. Bank v. Louis Family, Inc., [2002] FMSC 16; 10 FSM Intrm. 636, 638 (Chk. 2002).

Appeal and Certiorari - Notice of Appeal
A notice of appeal divests the trial court of jurisdiction except to act in aid of the appeal. FSM Dev. Bank v. Louis Family, Inc., [2002] FMSC 16; 10 FSM Intrm. 636, 638 (Chk. 2002).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On March 4, 2002, the Bank filed a Notice of Appeal from this court's February 6, 2002 order concerning the Bank's liability for R. Barrie Michelsen's attorney's fees. That order imposed an attorney's lien on funds generated from the Louis Family land at the Wichap quarry that were to be used to satisfy the FSM Development Bank's judgment in this case against the Louis Family. Aggregate Sys., Inc. v. FSM Dev. Bank, [2002] FMSC 1; 10 FSM Intrm. 493, 497 (Chk. 2002).

On March 26, 2002, the real party in interest, R. Barrie Michelsen, filed in the trial division his Motion to Dismiss Appeal of Development Bank as Moot and his Motion to Vacate Order and Substitute

[10 FSM Intrm. 638]

Alternative Relief. The ground for the dismissal motion was that since separate state proceedings had held that the Louis Family was not the owner of the quarry land there would be no proceeds from the enforcement of this lien. The other motion asks that the lien be enforced, not against the money currently in the court's possession and any future payments, but against money already paid to the FSM Development Bank in partial satisfaction of its judgment.

On April 3, 2002, the Bank filed its Response to Motion to Dismiss as Moot and its Response to Motion to Vacate Order. The Bank opposes both motions as premature because this court has not yet ruled on what effect the state proceedings have on this case or Michelsen's attorney's lien.

Generally, a notice of appeal acts to transfer jurisdiction from the trial court to the reviewing court, see, e.g., Damarlane v. Pohnpei, [1999] FMSC 27; 9 FSM Intrm. 114, 119 (App. 1999); Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 16 (App. 1997); Bank of Guam v. O'Sonis, [1999] FMSC 10; 9 FSM Intrm. 197, 198-99 (Chk. 1999) (trial court is without jurisdiction to strike a notice of appeal from the record because it raises a question addressed to the appellate court's jurisdiction and notice of appeal transferred jurisdiction to the appellate court); Walter v. Meippen, [1996] FMSC 5; 7 FSM Intrm. 515, 517 (Chk. 1996) (notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal), with some exceptions that do not apply here, see, e.g., Nimwes v. FSM, [1998] FMSC 11; 8 FSM Intrm. 297, 298-99 (App. 1998) (application for release from jail pending appeal should first be made to trial court); In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997) (motion for stay should first be made to trial court); Lebehn v. Mobil Oil Micronesia, Inc., [2002] FMSC 8; 10 FSM Intrm. 515, 517 (Pon. 2002) (motion to proceed in forma pauperis on appeal must be filed in court appealed from); Damarlane, 8 FSM Intrm. at 17 (trial court can tax costs after notice of appeal filed); Walter, 7 FSM Intrm. at 517 (while appeal is pending trial court has power to both consider and deny Rule 60(b) relief from judgment motions, but cannot grant a Rule 60(b) motion unless case remanded). These exceptions are all characterized as acts in aid of the appeal.

In Bank of Guam v. O'Sonis, [1999] FMSC 10; 9 FSM Intrm. 197 (Chk. 1999), the plaintiff filed a motion in the trial division to strike a defendant's notice of appeal on the ground it was untimely filed. The O'Sonis court held that a trial court was without jurisdiction or authority to strike a notice of appeal from the record, no matter how inadequate the notice was, because it raised a question addressed to the appellate court's jurisdiction and the notice of appeal's filing had transferred jurisdiction to the appellate court. Id. at 199. The trial court therefore denied the motion. (Later, the appellate court, determining its own jurisdiction, granted the appellee's motion to dismiss for lack of jurisdiction because the notice of appeal was untimely filed. O'Sonis v. Bank of Guam, [2000] FMSC 30; 9 FSM Intrm. 356, 360 (App. 2000).)

This motion is similar to the motion in Bank of Guam v. O'Sonis. A notice of appeal has been filed, transferring jurisdiction over the order appealed to the appellate division. The ground Michelsen raises for dismissal, mootness, is one addressed to the appellate court's jurisdiction - an appellate court lacks jurisdiction over an appeal when that appeal is moot. See FSM v. Louis, [2000] FMSC 39; 9 FSM Intrm. 474, 482 (App. 2000). Therefore, as in O'Sonis, the appellee's trial court motion to dismiss the appeal must be denied for want of jurisdiction of the trial court to rule upon it. It is a matter for the appellate division to consider, if raised there.

To the extent that Michelsen's motion to vacate relies upon his motion to dismiss, it also must be denied. Furthermore, a substantial sum remains on deposit with the court, which might, depending on the outcome of other matters, satisfy most of Michelsen's lien. There is therefore no need to substitute alternative relief at this time. The notice of appeal divested this court of jurisdiction except to act in aid of the appeal. Walter, 7 FSM Intrm. at 517. The court has not been persuaded that substituting alternative relief at this time would be an act in aid of the appeal.

NOW THEREFORE IT IS HEREBY ORDERED that both motions are denied.