Felix v Adams [2004] FMSC 57; 13 FSM Intrm. 28 (App. 2004) (20 October 2004)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Felix v Adams, [2004] FMSC 57; 13 FSM Intrm. 28 (App. 2004)

JOSEPH FELIX, ISLAND HOMES CONSTRUCTION, INC., and FSM DEVELOPMENT BANK,
Appellants,

vs.

YVETTE ETSCHEIT ADAMS d/b/a POHNPEI ACE
HARDWARE and ADAMS BROTHERS CORPORATION,
Appellees.

__________________________________________________

APPEAL CASE NO. P5-2003

ORDER

Andon L. Amaraich
Chief Justice

Decided: October 20, 2004

APPEARANCES:

For the Appellants (Felix, Island Homes):
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Appellant (FSM Dev. Bank):
James Woodruff, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review - Briefs and Record
Since the amount of the attorney’s fees owing to plaintiffs remained before the trial division at the time the appellate record ready certificate was issued, this does not mean that the record ready certificate’s issuance was improper since an order awarding a specific amount of attorney’s fees is a separate order that is not yet part of the appeal. Felix v. Adams, [2004] FMSC 57; 13 FSM Intrm. 28, 29 (App. 2004).

Appellate Review - Notice of Appeal
Appellants must file a subsequent notice of appeal to perfect their right to appeal any of the issues raised by a later attorney fee award order. Appellants must take the necessary steps to perfect an appeal from the trial division’s order awarding attorney’s fees and to consolidate that appeal with the pending appeal on the merits. Felix v. Adams, [2004] FMSC 57; 13 FSM Intrm. 28, 29-30 (App. 2004).

[13 FSM Intrm.28]

* * * *

COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

The Trial Division entered judgment in this matter on December 1, 2003. The judgment resolved the merits of the case in favor of Plaintiff-Appellees and adjudged that Plaintiff-Appellees were entitled to attorney’s fees. The judgment did not, however, fix the amount of fees to which Plaintiff-Appellees were entitled because no evidence on that issue was before the Trial Division at the time judgment was rendered.

On December 11, 2003, Defendant-Appellants Joseph Felix, Island Homes Construction, Inc., and the FSM Development Bank filed notices of appeal from the judgment of December 1, 2003 and certain other orders leading up to that judgment. On August 17, 2004, the Chief Clerk issued a record ready certificate for the appeal, making the Defendant-Appellants’ opening briefs due within 40 days. See FSM App. R. 31(a).

On September 7, 2004, Defendant-Appellant filed a motion to withdraw the record ready certificate. In this motion, they contended that two hearings had not been transcribed and included in the record and thus the record was not in fact ready. They also argued that the record on appeal could not be complete until the Trial Division resolved the amount of attorney’s fees, if any, to which Plaintiff-Appellants would be entitled. The Defendant-Appellants are wrong on both fronts.

First, the Certification of Record filed on August 17, 2004 does in fact include the hearings to which Defendant-Appellants appear to be referring, although they were initially mislabeled. Further, transcripts of these hearings have been complete and on file with the Court for some time. The only reason Defendant-Appellants have not yet been able to access the transcripts is because payment for the costs of preparing the transcripts has not been forthcoming.

Second, although it is true that the amount of the attorney’s fees owing to Plaintiff-Appellants remained before the Trial Division at the time the record ready certificate in this appeal was issued, this does not mean that issuance of the record ready certificate was improper. This is so because the order awarding Plaintiff-Appellants a specific amount of attorney’s fees is a separate order that is not yet part of this appeal. Indeed, Defendant-Appellants must file a subsequent notice of appeal to perfect their right to appeal any of the issues raised by this order. See, e.g., Terket v. Lund, [1980] USCA7 410; 623 F.2d 29, 34 (7th Cir. 1980).

In sum, Defendant-Appellants’ contentions that the record ready certificate in this appeal was improperly issued are without merit. For this reason, the Court hereby denies Defendant-Appellants’ motion to withdraw the record-ready certificate.

Nevertheless, the Court is cognizant of all parties’ desire to handle all potential issues on appeal, including those that may arise from the Trial Division’s recent order fixing attorney’s fees, in one round of briefing. Accordingly, the Court will enlarge the time for the parties to file their briefs in this appeal. Specifically, Defendant-Appellants shall have 50 days from the date of this order to serve and file their opening briefs. Plaintiff-Appellees shall serve and file their responsive briefs within 30 days after service of Defendant-Appellants opening briefs. Defendant-Appellants may then serve and file a reply brief within 14 days after service of the briefs of the Plaintiff-Appellees.

In the meantime, the Court expects the Defendant-Appellants to take the necessary steps (1) to perfect an appeal from the Trial Division’s order awarding attorney’s fees in this matter and (2) to consolidate that appeal with the instant appeal.

[13 FSM Intrm. 29]