Haruo v Mori [2008] FMSC 47; 16 FSM Intrm. 31 (App. 2008) (16 July 2008)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C2-2008

LINORA HARUO,
Appellant,

vs.

MINIKA MORI, AISEK MORI, and
ESTHER RAN,
Appellees.

ORDER DISMISSING APPEAL

Decided: July 16, 2008

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Appellant: Hans Wiliander
P.O. Box 389
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Appellate Review  Notice of Appeal
A notice of appeal must be taken within 42 days after the date of entry of the judgment appealed from. The 42-day period applies to all appellate review of final decisions of the Chuuk State Supreme Court appellate division and a certiorari petition is treated as a notice of appeal since it seeks appellate review of a Chuuk State Supreme Court appellate division final decision. Haruo v. Mori, [2008] FMSC 47; 16 FSM Intrm. 31, 32 (App. 2008).

Appellate Review  Decisions Reviewable
In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. Haruo v. Mori, [2008] FMSC 47; 16 FSM Intrm. 31, 32 (App. 2008).

Appellate Review
In the absence of an order issued by the court upon a showing of special cause, the clerk of court may not accept papers for filing by facsimile, but the court may authorize the clerk of court to accept for filing a facsimile response when the appellant desires to submit a timely response for filing. Haruo v. Mori, [2008] FMSC 47; 16 FSM Intrm. 31, 32 (App. 2008).

Appellate Review  Notice of Appeal
The time within which a party may file a notice of appeal is calculated from the date when the final order or judgment being appealed is entered. The deadline is not calculated from the date it was purportedly served on appellant's counsel. Haruo v. Mori, [2008] FMSC 47; 16 FSM Intrm. 31, 33 (App. 2008).

Appellate Review  Dismissal; Appellate Review  Notice of Appeal
An appellate court lacks jurisdiction over, and must dismiss, an appeal when the notice of appeal, including a petition for writ of certiorari, was not filed within 42 days from the date that the final order or judgment being appealed has been entered. Haruo v. Mori, [2008] FMSC 47; 16 FSM Intrm. 31, 33 (App. 2008).

* * * *

COURT'S OPINION

PER CURIAM:

This case comes before the Court on the Appellant's June 23, 2008 response to the Court's Order of May 8, 2008, inviting advice as to whether the Court has jurisdiction over this case. No advice was provided from the Appellees. For the reasons set forth below, this appeal is dismissed.

A. Background

On May 8, 2008, the Court issued an Order requiring the Appellant, if she deemed necessary, to advise this Court within thirty (30) days whether this Court lacked jurisdiction over this appeal. Previously, on March 13, 2008, the Appellant filed a Petition for a Writ of Certiorari with this Court. Upon review, however, it appeared that this court may have lacked jurisdiction over this appeal. Indeed, in her Petition for a Writ of Certiorari the Appellant states that the Chuuk State Supreme Court appellate division order which she is seeking to appeal to this Court was issued on January 14, 2008. The period between the issuance of the state court order in question and the date that the Petition for a Writ of Certiorari was filed is 59 days. Under FSM Appellate Rule 4, however, a notice of appeal must be taken within 42 days after the date of entry of the judgment appealed from. This 42-day period applies to all appellate review of final decisions of the Chuuk State Supreme Court appellate division. Bualuay v. Rano, [2002] FMSC 30; 11 FSM Intrm. 139, 145 (App. 2002). A certiorari petition is treated as a notice of appeal since it seeks appellate review of a final decision of the Chuuk State Supreme Court appellate division. Id. at 145. In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. As such, it appeared that this appeal should properly be dismissed. Melander v. Heirs of Tilfas, [2004] FMKSC 10; 13 FSM Intrm. 25, 27 (Kos. S. Ct. Tr. 2004).

Following the issuance of the Court's May 8, 2008 Order, a notice of appeal was filed with the Court on June 2, 2008.[1] This Notice of Appeal was purportedly signed on February 20, 2008.

B. Filing by Facsimile

On June 3, 2008, the Court's Order of May 8, 2008 was served on the Appellant's counsel. On June 23, 2008, the Appellant's counsel filed by facsimile a response to the Court's Order of May 8, 2008. In support of his request to file his response pleading by facsimile, the Appellant's counsel explains that he does not believe he can "depend" upon the postal service in the FSM. In addition, he states that he is filing the responsive pleading at issue here to ensure that it is received in time.

Under General Court Order 1990-1, in the absence of an order issued by the Court, upon a showing of special cause, the Clerk of Court may not accept pleadings for filing by facsimile. In this case, based upon the Appellant's desire to submit a timely response to the Court's Order of May 8, 2008, the Clerk of Court is hereby authorized to accept the Appellant's June 23, 2008 pleading at issue here for filing.

C. Jurisdiction

In her response to the Court's May 8, 2008 Order, the Appellant, through her counsel, acknowledges that the Chuuk State Supreme Court appellate division opinion being appealed was issued on January 14, 2008, and that her Petition for a Writ of Certiorari was issued on March 13, 2008. The Appellant argues that the opinion she is attempting to appeal, while issued on January 14, 2008, was not served on her counsel until January 25, 2008. The Appellant, noting that her Petition for a Writ of Certiorari was dated February 20, 2008, maintains that it was not timely filed with the Court due to a "problem" with the mail. The Appellant requests that the Court allow her 42 days from the date that the opinion being appealed was received, or from January 25, 2008.

The time within which a party may file a notice of appeal is calculated from the date when the final order or judgment being appealed is entered. FSM App. R. 4. This deadline is not calculated from the date of service of the final order or judgment. Thus, the Appellant's request to calculate the time period for filing the Petition for a Writ of Certiorari is properly calculated from the date that the Chuuk State Supreme Court appellate division opinion was entered, on January 14, 2008, rather than the date it was purportedly served on Appellant's counsel, January 25, 2008. Moreover, even if the Court were to calculate the filing deadline at issue here based upon the date of service of the opinion, January 25, 2008, the Appellant's Petition for a Writ of Certiorari would nonetheless have been filed late, as noted above, the Petition for a Writ of Certiorari was filed on March 13, 2008, which is 48 days after January 25, 2008. A notice of appeal, including a petition for a writ of certiorari must be filed within 42 days from the date that the final order or judgment being appealed has been entered.

Accordingly, based upon the record before us, we must dismiss this appeal for lack of jurisdiction.

D. Conclusion

In conclusion, and for the reasons set forth above, this appeal is hereby dismissed.

* * * *

---

^[1]On June 2, 2008, the Appellant also provided evidence to the Court that she served the Appellees’ counsel with her Petition for Writ of Certiorari and Motion to Appear Pro Hac Vice.