Berman v College of Micronesia (FSM) [2008] FMSC 36; 15 FSM Intrm. 622 (App. 2008) (29 May 2008)

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

MARY BERMAN,
Appellant,

vs.

COLLEGE OF MICRONESIA-FSM,
Appellee.
__________________________________________

ORDER DENYING RECONSIDERATION

Decided: May 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

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 without a motion to enlarge time to file the petition, 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 36; 15 FSM Intrm. 622, 623-24 (App. 2008).

Appellate Review  Rehearing

By its express terms, Appellate Rule 40(a) only allows the time for a petition for rehearing to be enlarged by court order and Rule 26(c) is not a court order. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 (App. 2008).

Appellate Review

When the date for a party to do an act is within a prescribed period after service of a paper upon that party, Appellate Rule 26(c) permits six days to be added, but the Rule 26(c) enlargement only applies when the prescribed time period is triggered by and calculated from the service of a paper upon the party who may then act. The fact that notice is to be served by mail is not dispositive. The correct inquiry is whether the required actions must be performed within a prescribed period of filing or of service. If the act is to be taken after filing, the time for action begins to run from that date. If the act is to be taken after service, the Appellate Rule 26(c) extension applies. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 (App. 2008).

Appellate Review

When an FSM court has not previously construed an FSM appellate procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 n.1 (App. 2008).

Appellate Review; Appellate Review  Notice of Appeal

The time within which a party may file a notice of appeal is calculated from when the trial court judgment is entered, and even when the notice is served by mail, the extra days allowed by Rule 26(c) cannot be added. The same is true for filing a cross-appeal even if the notice of appeal is served by mail, or for any court-ordered deadline even if the court order is served by mail. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 624 (App. 2008).

Appellate Review  Briefs, Record and Oral Argument

An appellant's opening brief is due 40 days after the date of the appellate clerk's notice that the record is ready and Rule 26(c) does not enlarge the 40 days even if the notice is served by mail. But the date when an appellees' brief is due is calculated by "30 days after service" of the appellant's brief, and the time for an appellant to serve and file a reply brief is "14 days after service" of the appellee's brief. Under Rule 26(c) six extra days are added when the brief whose service triggers the time period running is served by mail. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 625 (App. 2008).

Appellate Review  Motions

A party may file a response in opposition to a motion within 7 days after service of the motion, so if the motion is served on that party by mail, the party has six added days to file and serve a response. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 625 (App. 2008).

Appellate Review  Rehearing

The running of time within which a party may petition the court for a rehearing is not triggered by service of the opinion or judgment. It begins with the "entry of judgment." Thus, it, like the filing of a notice of appeal, a cross-appeal, or the appellant's opening brief, is not triggered by service, but by entry or filing. Appellate Rule 26(c) does not apply to petitions for rehearing and cannot extend the Rule 40(a) time limit for a petition for rehearing. Berman v. College of Micronesia-FSM, [2008] FMSC 36; 15 FSM Intrm. 622, 625 (App. 2008).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

This comes before the court on appellant Mary Berman's Notice of Timely Filing of Petition for Rehearing Pursuant to FSM App. R. 26(c) and Request for Reconsideration of Petition for Rehearing, filed May 22, 2008. The request for reconsideration is denied. Our reasons follow.

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." Since no court order was issued altering the time within which to file a rehearing petition, Berman had until April 28, 2008 to file her petition. Her petition was filed seven days later. We therefore denied the petition on May 14, 2008. [Berman v. College of Micronesia-FSM, [2008] FMSC 35; 15 FSM Intrm. 612, 613 (App. 2008).]

On May 22, 2008, Berman filed a notice asserting that her petition for rehearing had been timely filed and asking the court to reconsider her petition. She contends that her petition for rehearing was timely because she was served the April 14, 2008 Opinion and Judgment by mail. She relies on Appellate Rule 26(c) which provides that "[w]henever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party and the paper is served by mail, 6 days shall be added to the prescribed period." She contends that by adding six days, and since the sixth day falls on a Sunday, she had until Monday, May 5, 2008, the day she filed her petition, to file her petition.

If Appellate Rule 26(c) applied to Rule 40(a) petitions for rehearing, Berman's calculations would be correct. But Berman misreads the rules.

First, by its express terms, Appellate Rule 40(a) only allows the time for a petition for rehearing to be enlarged by court order. Rule 26(c) is not a court order.

Second, the key word in Rule 26(c) is "service." When the date for a party "to do an act [is] within a prescribed period after service of a paper upon that party," the Rule 26(c) six days may be added. FSM App. R. 26(c) (emphasis added). The Rule 26(c) enlargement only applies when the prescribed time period is triggered by and calculated from the service of a paper upon the party who may then act. In the rules, a party's time to do certain other things may start to run when certain papers are served, and a party's time to do other things starts running, not when service is made, but when some other event occurs. As explained succinctly by another court,

[t]he fact that notice is to be served by mail is not dispositive. The correct inquiry is whether the required actions must be performed within a prescribed period of filing or of service. If the act is to be taken after filing, the time for action begins to run from that date. If the act is to be taken after service, the . . . extensi [Appellate Rule] ule] 26(c) . .&#160plies.

Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1220 (5th Cir. 1985) (emphasis in original).a> "R6(c) es when when a pr a prescribed period commences upon servicervice of a paper upon a party, where such service may be made by mail." United States v. Zuleta-Molina, 840 F.2d 157, 158 n.1 (1st Cir. 1988).

For instance, the time within which a party may file a notice of appeal is calculated from when the trial court judgment is entered, and even when it is served by mail, the extra days allowed by Rule 26(c) cannot be added. 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3972.1, at 468-69 (3d ed. 1999); see also Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1043 (5th Cir. 1981). The same is true for filing a cross-appeal, even if the notice of appeal is served by mail, or for aurt-ordered deadline, even even if the court order is served by mail. Id. at 468; see also Hong v. Smith, 129 F.3d 823, 825 (5th Cir. 1997) (Rule 26(c) does not apply to extend time set by court order); Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 888 (10th Cir. 1984) (Rule 26(c) does not apply to extend time to file cross-appeal). Also, an appellant's opening brief is due 40 days after the date of the appellate clerk's notice that the record is ready. FSM App. R. 31(a). Rule 26(c) does not enlarge the 40 days even if the notice is served by mail.

Other deadlines for a party to act are triggered by the service of a paper. For instance, the date when an appellees' brief is due is calculated by "30 days after service" of the appellant's brief, and the time for an appellant to serve and file a reply brief is "14 days after service" of the appellee's brief. FSM App. R. 31(a). The Rule 26(c) extra days are added when the brief whose service triggers the time period running is served by mail. 16A Wright, Miller & Cooper, supra, § 3977, at 569. Likewa party arty "may file a response in opposition to a motion . .&. within 7 days after serr service of the motion," FSM App. R. 27(a), so if the motion is s on that party by mail, the party has six added days to filo file and serve a response.

The running of time within which a party may petition the court for a rehearing is not triggered by service of the opinion or judgment. It begins with the "entry of judgment." FSM App. R. 40(a) ("may be filed within 14 days after entry of judgment"). Thus, it, like the filing of a notice of appeal, a cross-appeal, or the appellant's opening brief, is not triggered by service, but by entry or filing. Appellate Rule 26(c) does not apply to petitions for rehearing. Garrett v. Garrett, 505 P.2d 39, 40 (Colo. Ct. App. 1971) (Appellate Rule 26(c) has no application to extend the time limit in Rule 40(a) for a petition for rehearing).

Accordingly, Mary Berman's request to reconsider her petition for rehearing is denied. The petition was untimely filed.

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[1]Although the court must first look to FSM sources of law, FSM Const. art.§ 11, when anen an FSM cour nhas not previously construed an FSM appellate procedure rule which is identical or similaa U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule rule, see, e.g., Kitti Mun. Gov’t v. Pohnpei[2003] FMSC 19; , 11 FSM Intrm. 622, 626 n.2 (App. 2003); Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 146 n.1 (App. 2002); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992).