Pohnpei v AHPW Inc [2005] FMSC 6; 13 FSM Intrm. 159 (App. 2005) (28 February 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as Pohnpei v AHPW Inc, [2005] FMSC 6; 13 FSM Intrm. 159 (App. 2005)

STATE OF POHNPEI,
Appellant/Cross-Appellee,

vs.

AHPW, INC.,
Appellee/Cross-Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Cross-Appellee.

__________________________________________

APPEAL CASE NO. P4-2004
(Civil Action No. 1999-053)

ORDER DENYING DISMISSAL IN PART
AND GRANTING DISMISSAL IN PART

Dennis K. Yamase
Associate Justice

Decided: February 28, 2005

APPEARANCES:

For the Appellant (Cross-Appellee):
Leonito M. Bacalando, Jr., Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

For the Appellee (Cross-Appellant):
Douglas F. Cushnie, Esq.
P.O. Box 949
Saipan, MP 96950

* * * *

HEADNOTES

Appellate Review - Dismissal
A single justice does not have the power to dismiss a cross-appeal when the cross-appellant’s brief allegedly fails to make proper citations to the record as required by the appellate rules; includes extraneous matters; and has an inadequate appendix and which is alleged to be without merit on its face. A single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of the appellate rules, including the time requirement to file the notice of appeal within 42 days after the entry of the judgment. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

[13 FSM Intrm.175]

Attorney, Trial Counselor and Client - Fees
A trial court retains jurisdiction to issue an order assessing fees and costs even if issued after an appeal has been filed. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
When no notice of appeal from a post-judgment order awarding attorneys’ fees is filed, the appellate court lacks jurisdiction to review the order. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
Since no notice of appeal was filed for the post-judgment attorney’s fee award, the FSM Supreme Court appellate division lacks jurisdiction to review it because in the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. It is then properly dismissed. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

Appellate Review - Dismissal
A single justice may dismiss an appeal for failure to comply with the appellate rules’ timing requirements, including the timing requirement to file a notice of appeal. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

Appellate Review - Briefs and Record; Appellate Review - Dismissal
Alleged deficiencies such as inadequate citations to the record and an inadequate appendix are not grounds upon which a single justice may dismiss an appeal, but such deficiencies, if true, would adversely affect the appellant’s power to persuade the full appellate panel that the trial court erred in the manner in which it claims. Nor will a single justice strike the portions of the brief concerning an issue allegedly not raised below since it is the appellant’s burden to persuade the full appellate panel that the issue was raised below or is properly before the appellate division. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

Appellate Review - Standard of Review
The general rule is that an issue not raised below will not be considered for the first time on appeal. Pohnpei v. AHPW, Inc., [2005] FMSC 6; 13 FSM Intrm. 159, 161 (App. 2005).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

Cross-appellant AHPW, Inc. filed its opening brief for its cross-appeal on January 28, 2005. On February 10, 2005, cross-appellee State of Pohnpei filed a Motion to Dismiss AHPW’s Appeal or to Strike out AHPW’s Opening Brief and to Stay Briefing on the Cross-appeal. AHPW’s opposition to the motion was received February 21, 2005 and Pohnpei’s reply to the opposition was filed the next day.

Pohnpei’s motion asserts that AHPW’s opening brief fails to make proper citations to the record as required by the appellate rules; includes extraneous matters - the issues of detrimental reliance and of AHPW’s attorney fees; and has an inadequate appendix. Pohnpei urges that AHPW’s cross appeal is without merit on its face and that these alleged deficiencies are grounds to dismiss AHPW’s cross-appeal without review by a full appellate panel because such a review would be a waste of judicial time and resources. In the alternative, Pohnpei asks that AHPW’s brief be stricken, or failing that, that the portions of the brief where AHPW raises the issues of detrimental reliance and attorney’s fees be stricken. Lastly, Pohnpei asks that the time for its response brief be stayed until after this motion is decided.

[13 FSM Intrm.176]

As a single justice, I do not have the power to dismiss AHPW’s cross-appeal in its entirety. "[A} single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of the[ appellate] rules." FSM App. R. 27(c). A single justice may dismiss an appeal upon a party’s failure to comply with the appellate rules’ time requirements, including the time requirement to file the notice of appeal within 42 days after the entry of the judgment. O’Sonis v. Bank of Guam, [2000] FMSC 30; 9 FSM Intrm. 356, 360 (App. 2000).

This is the ground upon which Pohnpei relies for its assertion that the issue of AHPW’s attorney’s fees should be stricken from the brief. The trial court issued its decision on July 8, 2004, AHPW, Inc. v. FSM, [2004] FMSC 56; 12 FSM Intrm. 544 (Pon. 2004), and entered judgment for AHPW against Pohnpei on July 8, 2004 and judgment in favor of the FSM against AHPW on August 27, 2004. AHPW filed notices of appeal on August 16, 17, and 30, 2004. On November 9, 2004, the trial court issued its order and memorandum determining the amount of attorney’s fees to award AHPW as the prevailing party. AHPW, Inc. v. FSM, [2004] FMSC 33; 13 FSM Intrm. 36 (Pon. 2004). AHPW did not file a further notice of appeal (from the attorney fee award).

AHPW contends that the award of attorney’s fees is properly up on appeal because it was a part of the July 8, 2004 judgment. AHPW is correct that its right to receive an attorney’s fee award was part of that judgment. AHPW is also correct that a trial court retains jurisdiction to issue an order assessing fees and costs even if issued after an appeal has been filed. Damarlane v. United States, [1997] FMSC 31; 8 FSM Intrm. 14, 16 (App. 1997). What was not part of the July 8, 2004 judgment that AHPW appealed was the method of calculating the fee award and the amount awarded. None of that became an issue until the trial court issued its November 9, 2004 order. No timely notice of appeal has been filed for that order. One was required. See Felix v. Adams, [2004] FMSC 57; 13 FSM Intrm. 28, 29 (App. 2004). "Where no notice of appeal from a post-judgment order awarding attorneys’ fees is filed, the [appellate court] lacks jurisdiction to review the order." Culinary & Serv. Employees Union v. Hawaii Employee Benefit Admin., Inc., [1982] USCA9 1684; 688 F.2d 1228, 1232 (9th Cir. 1982) (trial court made fee award after judgment appealed; no notice of appeal filed from award; appellate court without jurisdiction to determine if trial court abused discretion under fee statute). Since no notice of appeal was filed for the November 9, 2004 post-judgment attorney’s fee award, the FSM Supreme Court appellate division lacks jurisdiction to review it.

In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal and it is then properly dismissed. O’Sonis, 9 FSM Intrm. at 360. A single justice may dismiss an appeal for failure to comply with the appellate rules’ timing requirements, including the timing requirement to file a notice of appeal. AHPW’s appeal of the issues first ruled upon by the trial court in its November 9, 2004 order are accordingly dismissed and that portion of AHPW’s opening brief concerning the November 9th attorney fee award is stricken. (This ruling is not to be taken as any comment on the validity of the arguments raised in that portion of the brief.)

However, AHPW’s brief as a whole will not be stricken. The deficiencies Pohnpei alleges that AHPW’s brief has, would, if true, adversely affect AHPW’s power to persuade the full appellate panel that the trial court erred in the manner that AHPW claims. For instance, I note that AHPW’s brief contains citations to the record. If these citations are as inadequate as Pohnpei asserts, AHPW will not be able to persuade the court of the merit of its contentions. Neither will the portions of the brief raising the issue of detrimental reliance be stricken. Pohnpei is correct that the general rule is that an issue not raised below will not be considered for the first time on appeal. Alfons v. FSM, [1992] FMSC 29; 5 FSM Intrm. 402, 404 (App. 1992). It is AHPW’s burden to persuade the full appellate panel that the issue was raised below or is properly before the appellate division.

[13 FSM Intrm.177]

Accordingly, Pohnpei’s motion is denied except as to the portion of AHPW’s opening brief contending that the trial court erred in setting the amount of the attorney fee award due AHPW. That portion of the brief is stricken and AHPW’s appeal on that ground only is dismissed for the lack of jurisdiction.

Because of the delay caused by the consideration of this motion the briefing schedule will be modified as follows:

Appellee AHPW may file a response brief to Pohnpei’s appeal no later than March 17, 2005. Cross-appellee Pohnpei may file a response brief to AHPW’s appeal no later than March 17, 2005. Cross-appellee FSM may file a response brief to AHPW’s appeal no later than March 17, 2005.

Appellant Pohnpei may file a reply brief to appellee AHPW’s response brief to Pohnpei’s appeal no later than March 31, 2005. Cross-appellant AHPW may file a reply brief to cross-appellee Pohnpei’s response brief to AHPW’s appeal no later than March 31, 2005.

* * * *