Panuelo v Amayo [2002] FMSC 37; 11 FSM Intrm. 205 (App. 2002) (6 November 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205 (App. 2002)

[2002] FMSC 37; [11 FSM Intrm. 205]

IOANIS PANUELO d/b/a IP ENTERPRISES,
Appellant,

vs.

ALFRED AMAYO and ELSA AMAYO, Individually,
and as Next Friends of ALFIE AMAYO, APRIL
AMAYO, and JILLEEN AMAYO,
Appellees.

APPEAL CASE NO. P4-2001

ORDER

Decided: November 6, 2002

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Keske Marar, Temporary Justice, FSM Supreme Court*
Hon. Yosiwo George, Temporary Justice, FSM Supreme Court**

*Associate Justice, Chuuk State Supreme Court
**Chief Justice, Kosrae State Court

APPEARANCES:

For the Appellant:
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

[11 FSM Intrm. 206]

For the Appellees:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Stay
When the appellees’ submission for partial distribution of the appellant’s supersedeas bond complies with a single justice’s previous orders concerning client contact, lost wages, and expenses incurred, the court will release the previously-ordered $20,000 distribution plus the pro rata interest on that amount. Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205, 207-08 & n.1 (App. 2002).

Appellate Review - Briefs and Record
While the court will not look favorably on anyone who attempts to manipulate type face in an attempt to circumvent the rules’ intent, which is to place a reasonable limitation on submissions to the appellate division and prevent the court from wasting time and resources, the court may decide not to strike a brief when there was no evidence the appellees’ intentionally disregarded Appellate Rule 32(a) or that the appellant was prejudiced, but which, because of technological changes from typewriters to computers, technically exceeded the Rule’s page limit. Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205, 208-09 (App. 2002).

Appellate Review - Briefs and Record
Good cause to enlarge time to file a reply brief may be found when the appellant’s motion to strike the appellees’ brief has not been resolved. Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205, 209 (App. 2002).

Appellate Review
The court’s review of a single justice’s action is discretionary, and when the appeal is fully briefed and is ready to be heard on its merits and when the full court finds that its order directing distribution of a portion of the cash supersedeas bond is sufficient to protect the appellees, the court will not revisit every single justice order. Panuelo v. Amayo, [2002] FMSC 37; 11 FSM Intrm. 205, 209 (App. 2002).

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On April 24, 2002, appellant filed a supersedeas bond consisting of (1) a cashier’s check in the amount of $50,000; and, (2) a mortgage on certain real property in favor of the FSM Supreme Court, to secure payment of the judgment below in the amount of $388,895.50 plus costs and statutory interest.

By order dated March 25, 2002, Chief Justice Amaraich required appellant to post the $50,000 cash deposit with the Clerk of the Appellate Division, and stated that forty percent of that amount would "be paid immediately to appellees to be used to pay appellees’ expenses due to Mr. Amayo’s paralysis," and that the remainder would be placed in an interest bearing account pending the outcome of the appeal. Panuelo v. Amayo, [2002] FMSC 45; 10 FSM Intrm. 558, 565 (App. 2002). On April 25, 2002, Chief Justice Amaraich denied Appellees’ first motion for distribution of that $20,000 for failure to comply

[11 FSM Intrm. 207]

with his March 25, 2002 Order.

On September 30, 2002, appellees filed a second motion for distribution. In support of that motion, appellees attach the affidavit of Alfred Amayo, which includes a calculation of the monthly expenses of him and his family, and a statement of the amount of medical expenses he has incurred which are past due. Appellant filed an opposition to appellees’ motion on October 7, 2002.

On October 4, 2002, appellant filed a motion to strike appellees’ brief, filed August 23, 2002, and filed a motion for enlargement of time to file a reply brief, seeking an enlargement of time until after appellant’s motion to strike is ruled upon.

On October 25, 2002, appellees filed a motion for reconsideration and relief to the appellate division full panel and request for an expedited hearing. On October 30, 2002, appellant filed his reply brief.

For the following reasons, the Court will grant appellees’ second motion for distribution, deny appellant’s motion to strike, grant appellant an enlargement of time to file his reply brief, and deny appellees’ motion for review of orders dated March 25, 2002, April 25, 2002, July 31, 2002, and November 21, 2001.

I. Appellees’ Second Motion for Distribution

The Court finds that Mr. Amayo’s submission in support of his request for distribution complies with Chief Justice Amaraich’s previous orders, and addresses the concerns he had about Mr. Amayo’s counsel being in contact with his client regarding the proposed distribution of the supersedeas bond.

Appellant objects to the distribution on the grounds that Mr. Amayo has not yet incurred $20,000 in expenses that are "due to his paralysis." Appellant also argues that, because the order of April 25, 2002 stated that the bond would be used to pay Mr. Amayo’s medical expenses and to support the appellees "while this case is pending on appeal," the appellees’ costs related to the time from the filing of the notice of appeal to present are the only costs that should be covered by the bond. However, the expenses the Amayos currently have, while the appeal is pending, date back to the time that Mr. Amayo was injured. The trial court awarded Mr. Amayo $5,400 in medical expenses, and awarded him $108,000 in lost wages. The trial court calculated his wages at $2.50 per hour, times 48 hours per week, times 50 weeks per year. Amayo v. MJ Co., [2001] FMSC 10; 10 FSM Intrm. 244, 251 (Pon. 2001). The date of Mr. Amayo’s injury was July 17, 1999. Thus, the trial court found that, but for Mr. Amayo’s injury, he would have been earning $6,000 per year to support his family. Mr. Amayo was injured more than 3 years ago, and his lost wages during that period, as calculated by the trial court, exceed $19,000.

A review of the expenses submitted by Mr. Amayo demonstrates that appellees have incurred expenses since the time of Mr. Amayo’s injury that they would have been able to pay from wages that the trial court found Mr. Amayo would have been able to earn, but for his injury. Specifically, Mr. Amayo avers that he spends $300.67 per month for food for appellees, $38.79 per month for transportation, $96.993 for labor services, $96.993 for educational expenses for his children, and $116.39 per month for his care. He also avers that he has outstanding medical debt of $9,699.32. Based on the trial court’s finding that Mr. Amayo was entitled to recover $5,400 in medical expenses, the court limits his recovery to that amount for purposes of calculating the disbursement at this time. The Court finds, however, that the other expenses incurred by Mr. Amayo for his care and the care of his family since the time of his injury are debts that he has incurred on a monthly basis since his injury, that he otherwise would have been able to pay from his wages. These expenses, plus his allowable

[11 FSM Intrm. 208]

medical expenses, exceed $20,000. Accordingly, in order to protect the appellees while this appeal is pending, the Court will order distribution of the $20,000 to appellees to pay these expenses.

Based upon Mr. Amayo’s statements of past due medical expenses, his lost wages to date and during the remainder of the time this appeal is pending, the amount required by him to hire additional labor to take care of his family because of his injury, and other expenses Mr. Amayo has shown he currently has and will continue to incur pending resolution of this case on appeal, the Court will order that the clerk of the appellate division release $20,000 of the supersedeas bond to Mr. Amayo, in accordance with the previous orders.^[1]

II. Appellant’s Motion to Strike

Appellant also moved to strike appellees’ brief, as appellant states that examination of appellees’ brief reveled that it was prepared with the lines only 1.5 spaced instead of the double spacing required by the FSM Rules of Appellate Procedure. Specifically, Rule 32(a) requires as follows:

Briefs may be produced by standard typing or by any duplicating or copying process which produces a clear black image on white paper. Briefs and appendices shall be bound in volumes having pages not exceeding 8½ by 11 inches and type matter not exceeding 6½ inches by 9 inches, with double spacing between each line of text.

FSM App. R. 32(a). This rule is not specific about what type, font, or word processing program shall be used in calculating spacing of lines and characters. In this regard, the FSM Rule appears outdated. The advent of computer technology and variable type sizes has revolutionized word processing and permits type font, spacing, and size to be easily manipulated. Thus, courts in other jurisdictions have amended rules to reflect this, and to set certain specific type standards for filing appellate briefs.

The Court takes judicial notice of the fact that the FSM Rules of Appellate Procedure were produced at a time before prolific computer technology, and that they reflect the standard form of typewriter formatting at that time. The rules themselves were produced in a standard typewriter format with six-lines per inch of text, and with margins of one inch on each side. Thus, a standard page used to consist of 66 lines. Double spacing with one-inch margins would leave 27 lines of text per page.

Appellees’ brief averages between 27 and 28 lines of text per page. Appellant’s brief averages approximately 23 lines per page. It appears that both parties in this case use type fonts that produce more words per line than a standard typewriter. It does not appear that the current FSM Rule is specific enough to adequately limit the content of an appellate brief when it merely requires double spacing within a 9 inch by 6 and ½ inch margin.

However, the Court finds no evidence that appellees intentionally disregarded FSM Appellate Rule 32(a), nor that appellant is in any way prejudiced by the length of appellees’ brief. The Court will accept appellees’ brief as filed, even though it technically exceeded the specific page limit at the end.^[2] This Court will not look favorably on any person who attempts to manipulate type face in an attempt

[11 FSM Intrm. 209]

to circumvent the intent of these rules, which is to place a reasonable limitation on submissions to the appellate division and prevent the court from wasting time and resources. Rule 32(a) may require re-evaluation regarding the standards set forth, to see whether an amendment will make the rule more explicit without making it unduly complicated.

At this time, however, the Court finds no compelling reason to strike appellees’ brief.

III. Appellant’s Motion for Enlargement

Finally, appellant moved for an enlargement of time to file his reply brief until his motion to strike is resolved. Subsequent to that motion, appellees filed a second brief on October 16, 2002, which is 47 pages in length, and which appellees’ counsel avers is double spaced. Appellant then requested an enlargement of time until October 30, 2002 to file his reply. Appellant filed his reply on October 30, 2002. The Court finds good cause to grant the requested enlargement, and accepts appellant’s reply brief as filed. FSM App. R. 26(b).

IV. Appellees’ Motion for Reconsideration
and Relief to Appellate Division Full Panel

On October 25, 2002, appellees filed a motion for reconsideration of four orders entered by Chief Justice Amaraich acting as a single article XI, section 3 justice. Associate Justice Dennis K. Yamase was sworn in as a justice of the FSM Supreme Court on October 3, 2002. By letter dated October 25, 2002, Chief Justice assigned Associate Justice Yamase to the Appellate Panel in this case, along with the Honorable Keske Marar from the Chuuk State Supreme Court, acting as a temporary justice. On October 28, 2002, Justice Yamase recused himself from this case. The Honorable Yosiwo George of the Kosrae State Court now has been assigned to the Appellate Panel in this case.

Rule 27(c) of the FSM Rules of Appellate Procedure provides that:

[i]n addition to the authority expressly conferred by these rules or by law, a single article XI, section 3 justice of the Supreme Court appellate division may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion . . . . The Supreme Court appellate division may provide by order or rule that any motion or class of motions must be acted upon by the court. The acti a sijusti>may be reviewed by the court.

FSM App. R. 27(c) (emphaemphasis asis added)dded). It is clear that the Court’s review of the action of a single justice is discretionary. This appeal is fully briefed and is ready to be heard on its merits. The Court finds that this order directing distribution of a portion of the cash supersedeas bond is sufficient to protect the appellees during what remains of the pendency of the appeal, and that to revisit every order issued by Chief Justice Amaraich would interpose substantial and unnecessary delay in these proceedings. Accordingly, the Court denies appellees’ motion for reconsideration and relief to the appellate division full panel. The Clerk of the Appellate Division will notify the parties when oral arguments shall be heard in this case.

The Clerk of the Appellate Division is HEREBY ORDERED to obtain information from appellees’ counsel regarding his client trust account for Alfred Amayo and his family, and make immediate distribution of $20,000, plus pro-rata interest on that amount, to Mr. Berman’s trust account for the Amayos. Appellees’ counsel is HEREBY ORDERED to submit an accounting of the money placed in trust with him for the benefit of appellees and notify the Court by affidavit of any distributions of that money to appellees and the purpose therefore, within thirty days of any such distribution. Appellant’s motion to strike appellees’ brief is HEREBY DENIED, Appellant’s motion for enlargement is HEREBY GRANTED, and

[2002] FMCSC 14; [11 FSM Intrm. 210]

the Court accepts appellant’s reply brief submitted on October 30, 2002. Appellees’ motion for reconsideration and relief to the appellate division full panel is HEREBY DENIED.

* * * *

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^[1] Because so much time has elapsed since my March 25, 2002 Order, the Court clarifies that this Order entitles appellees to receive the $20,000, plus pro-rata interest on that amount since deposited by the appellate clerk.

^[2] Because so much time has elapsed since my March 25, 2002 Order, the Court clarifies that this Order entitles appellees to receive the $20,000, plus pro-rata interest on that amount since deposited by the appellate clerk.