Berman v College of Micronesia (FSM) [2008] FMSC 35; 15 FSM Intrm. 612 (App. 2008) (14 May 2008)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P2-2007

MARY BERMAN,
Appellant,

vs.

COLLEGE OF MICRONESIA-FSM,
Appellee.
__________________________________________

ORDER DENYING REHEARING

Decided: May 14, 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

APPEARANCE:

For the Appellant: Mary Berman, Esq., pro se
P.O. Box 163
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Rehearing

When an appellate opinion and judgment were entered on April 14, 2008 and the appellant filed her petition for rehearing on May 5, 2008, the petition was filed seven days late because Appellate Procedure Rule 40(a) permits a petition for rehearing to be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order and because no court order was issued changing the time within which to file a rehearing petition. Berman v. College of Micronesia-FSM, [2008] FMSC 35; 15 FSM Intrm. 612, 613 (App. 2008).

Appellate Review  Rehearing

A motion to reconsider filed after the time to file a petition for rehearing has expired is considered a petition for rehearing, as well as a motion to enlarge time to file such a petition. Such a petition may be denied in its entirety as untimely filed. Berman v. College of Micronesia-FSM, [2008] FMSC 35; 15 FSM Intrm. 612, 613 (App. 2008).

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COURT'S OPINION

PER CURIAM:

The opinion and judgment in this appeal were entered on April 14, 2008. Mary Berman filed her Petition for Rehearing on May 5, 2008. She did not file a motion for an enlargement of time.

Appellate Procedure Rule 40(a) provides that: "A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order." No court order was issued changing the time within which to file a rehearing petition. Berman therefore had until April 28, 2008 to file her petition. Thus, her petition was not timely filed. It was filed seven days late. Berman has given no reason for the late filing of her petition or even acknowledged that it is late.

A motion to reconsider filed after the time to file a petition for rehearing has expired is considered a petition for rehearing, as well as a motion to enlarge time to file such a petition. Jano v. FSM, [2004] FMSC 52; 12 FSM Intrm. 633, 634 (App. 2004). Such a petition may be denied in its entirety as untimely filed. Id. In Goya v. Ramp, [2006] FMSC 42; 14 FSM Intrm. 305, 307 (App. 2006), the appellant's petition for rehearing was filed five days late (19 days after judgment was entered) and no motion to enlarge time was ever filed so we concluded that that petition "could be denied on that ground alone." In Goya, however, we sua sponte enlarged the time for filing the petition and then considered its merits, but we warned that we "may not be so inclined for future petitions." Id. That warning has not been heeded.

Accordingly, Mary Berman's petition for rehearing is denied since it was filed too late and no enlargement of time was sought.

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