Heirs of George v Heirs of Tosie [2008] FMSC 28; 15 FSM Intrm. 560 (App. 2008) (29 March 2008)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. K4-2006

HEIRS OF RALEIGH GEORGE and LARSON GEORGE,
Appellants,

vs.

HEIRS OF ELAIJA TOSIE and HEIRS OF MARES TOSIE,
Appellees.
__________________________________________

ORDER OF DISMISSAL

Decided: March 29, 2008

BEFORE:

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

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HEADNOTES

Appellate Review  Briefs, Record, and Oral Argument

Although it was stamped as "received" by the clerk, the court will deem filed a brief signed by unadmitted trial counselor and signed by an admitted supervising attorney since the brief was signed by an admitted attorney. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 n.1 (App. 2008).

Appellate Review  Decisions Reviewable

The well-established general rule is that only final decisions may be appealed. A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Final orders and judgments are final decisions. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 (App. 2008).

Appellate Review  Decisions Reviewable

Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders will merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding if and when a final judgment or order results. This advances the policy of judicial economy which dictates against piecemeal appeals from the same civil action. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 (App. 2008).

Appellate Review  Decisions Reviewable

The appellate procedure rules permit certain interlocutory appeals from the FSM Supreme Court trial division, but those rules may not apply to appeals from the Kosrae State Court. In civil cases, appeals may be taken from all final decisions of the Kosrae State Court. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 (App. 2008).

Appellate Review  Decisions Reviewable

The collateral order doctrine permits appeals before a final decision. The requirements for a collateral order doctrine appeal are that the order appealed from must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 (App. 2008).

Appellate Review  Decisions Reviewable

The collateral order doctrine does not apply to an interlocutory appeal that involves an issue which would be reviewable on appeal from a final decision and which is not completely separate from the merits of the action but is at the heart of the action's merits. The appeal will therefore be dismissed since it is not from a final decision and thus not ripe for review. The dismissal will be without prejudice to any future appeal from a final decision. Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562-63 (App. 2008).

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COURT'S OPINION

PER CURIAM:

This matter comes before us as an interlocutory appeal. It is hereby dismissed without prejudice. Our reasons follow.

I. Proceedings Below

In 2005, the Kosrae Land Court scheduled a hearing on two parcels of land. On February 8, 2005, the Land Court determined that those two parcels, Parcel Nos. 039M-18 and 039M-19, were portions of the land, Parcel No. 039M-17, covered by a 1994 determination of ownership and dismissed the matter. On April 8, 2005, the Heirs of Elaija Tosie and the Heirs of Mares Tosie appealed that decision to the Kosrae State Court (Civ. No. 49-05).

On January 26, 2006, the Tosie parties filed their opening brief. On March 21, 2006, instead of filing a response brief, the Heirs of Raleigh George and Larson R. George moved to dismiss on the grounds of res judicata, collateral estoppel, laches, payment, accord and satisfaction, and statute of limitations. The Tosie parties filed their opposition March 30, 2006. After hearing the motion on April 6, 2006, the Kosrae State Court, on April 12, 2006, denied the motion without giving any reasons for the denial and set a date for the George parties to file their response brief.

On April 28, 2006, the George parties filed a "Notice of Appeal Interlocatory," [sic] contending that the Kosrae State Court held that it had jurisdiction when it should not have and that it should have granted the George parties' motion to dismiss. On June 8, 2006, the Kosrae State Court stayed further proceedings in Civil Action No. 49-05 while this appeal is pending.

II. FSM Supreme Court Jurisdiction

The appellants themselves denominate Appeal Case No. K4-2006 as an interlocutory appeal on the Notice of Appeal and in the brief filed December 22, 2006. Notice of App. at 1 (Apr. 28, 2006); Appellants' Br. at 4 (Dec. 22, 2006). The court therefore invited all counsel[1] who had appeared for both the appellants and the appellees to file memorandums on whether the FSM Supreme Court has jurisdiction over this appeal, when, at least by the appellants' own designation, it is an interlocutory appeal, and the court usually does not have jurisdiction over interlocutory appeals. No memorandums were filed. We then considered the jurisdiction issue to be submitted for our decision.

The well-established general rule is that only final decisions may be appealed. A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Final orders and judgments are final decisions. Chuuk v. Davis, [2000] FMSC 17; 9 FSM Intrm. 471, 473 (App. 2000); In re Extradition of Jano, 6 FSM Intrm. 23, 24 (App. 1993). Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders will merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding if and when a final judgment or order results. This advances the policy of judicial economy which dictates against piecemeal appeals from the same civil action. FSM Dev. Bank v. Adams, [2004] FMSC 5; 12 FSM Intrm. 456, 461 (App. 2004).

The appellate procedure rules do permit certain interlocutory appeals from the FSM Supreme Court trial division. See FSM App. R. 4(a)(1)(B), 4(a)(1)(C), 4(a)(1)(D), 5(a). Those rules may not apply to appeals from the Kosrae State Court. In civil cases, appeals may be taken from all final decisions of the Kosrae State Court. FSM App. R. 4(a)(1)(A). The collateral order doctrine also permits appeals before a final decision. The requirements for a collateral order doctrine appeal are that the order appealed from must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment. Adams, 12 FSM Intrm. at 461.

The interlocutory appeal here involves an issue which would be reviewable on appeal from a final decision and which is not completely separate from the merits of the action, but is at the heart of the action's merits. The collateral order doctrine does not apply. This appeal is a good example of why appeals are generally only allowed from final decisions. The Heirs of George, instead of filing their answering brief to the Tosie parties' opening brief in the Kosrae State Court, tried to take a shortcut by moving to dismiss and, when a one-page order denied the motion and set a date to file the answering brief, filed this appeal. As a result, we do not have the benefit of the Kosrae State Court's reasoned consideration of the issues the George parties want us to review. If the Kosrae State Court process had proceeded to its conclusion, that court's decision might have been favorable to the George parties. But even if it had not been, the record would have been developed, the issues sharpened, and perhaps even narrowed.

This appeal is dismissed since it was not from a final decision of the Kosrae State Court and thus not ripe for review. Cf. Wiliander v. National Election Dir., [2005] FMSC 44; 13 FSM Intrm. 199, 204 (App. 2005) (an appeal filed too soon, or prematurely, will be dismissed for lack of jurisdiction as not ripe for review). The Kosrae State Court may proceed with the matter. Our dismissal is without prejudice to any future appeal from a final decision. Santos v. Bank of Hawaii, [1999] FMSC 38; 9 FSM Intrm. 285, 288 (App. 1999). Haste has made waste. If it had not been for this interlocutory appeal, this matter may have been resolved by now, or at least ready for our appellate review on the erits.

III. Conclusion

Accordingly, this appeal is dismissed since it is not from a final decision of the Kosrae State Court.

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^[1]The counsel who filed this appeal moved to withdraw, but the court never granted the withdrawal. An unadmitted trial counselor moved to substitute as appellants’ counsel, and, with an admitted supervising attorney, signed and sent to the clerk an opening brief. He also filed a motion to appear pro hac vice. Since the brief was signed by an admitted attorney, although it was stamped as "received" by the clerk, the court deemed it filed. At different times, both the substitute counsel and the admitted attorney later moved to withdraw. Since substitute counsel’s motion to appear had never been granted, his withdrawal motion was deemed unnecessary. The unadmitted trial counselor who had represented the Tosie parties in the State Court never filed anything with this court. All of these people were asked to file a memorandum on jurisdiction.