Smith v Nimea [2009] FMSC 16; 16 FSM Intrm. 346 (App. 2009) (6 March 2009)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P3-2008

GORDON SMITH,
Appellant,

vs.

FABIAN NIMEA, individually and d/b/a "FSN FINANCIAL GROUP, INC., d/b/a FFGI CONSULTING GROUP,
Appellees.

______________________

ORDER OF DISMISSAL

Decided: March 6, 2009

BEFORE:

Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Camillo Noket, Temporary Justice, FSM Supreme Court*

*Chief Justice, Chuuk State Supreme Court, Weno, Chuuk

APPEARANCES:

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

For the Appellees: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Motions
Motions may be decided without oral argument. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 348 (App. 2009).

Civil Procedure  Summary Judgment; Judgments
A denial of a request for reconsideration does not mean that a partial adjudication order is not subject to revision at any time. Even though the trial court may be very unlikely to revise it, the order remains legally capable of being revised (under the appropriate circumstances) any time before the trial court enters a final judgment. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 348 (App. 2009).

Civil Procedure  Summary Judgment; Judgments
A court can enter judgment on less than all of the claims in a case only if the court makes both an express determination that there is no just cause for delay and an express direction for entry of judgment. Both elements must be present to give a partial adjudication final judgment status. When either element is absent, even if only because of oversight or a failure to appreciate that the case is one that is within Rule 54(b), the partial adjudication does not carry final judgment status. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 348-49 (App. 2009).

Appellate Review  Decisions Reviewable; Judgments
When a trial court dismisses less than all of the claims but does not expressly make the required findings under Rule 54(b), that dismissal is not a final decision. When the trial court did not expressly determine that there was no just cause for delay and did not expressly direct the entry of judgment, the appeal is not from a final decision since the trial court must do both for a partial adjudication to be deemed a final decision capable of being appealed. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 349 (App. 2009).

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 or partial adjudications will eventually merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding once a final judgment or order results. This advances the policy of judicial economy which dictates against piecemeal appeals from the same civil action. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 349 (App. 2009).

Appellate Review  Decisions Reviewable
A timely notice of appeal from a final decision is a prerequisite to an appellate court's jurisdiction over an appeal. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 349 (App. 2009).

Appellate Review  Decisions Reviewable; Appellate Review  Dismissal
An appeal that is not from a final decision will be dismissed for lack of jurisdiction without prejudice to any future appeal from a final decision. Smith v. Nimea, [2009] FMSC 16; 16 FSM Intrm. 346, 349 (App. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This is an appeal from a partial summary judgment. [Smith v. Nimea, [2008] FMSC 66; 16 FSM Intrm. 186 (Pon. 2009).] On appellees' motion, we dismiss this appeal for lack of jurisdiction. Our reasons follow.

I. PROCEDURAL POSTURE

On November 17, 2008, the trial court denied plaintiff Gordon Smith's summary judgment motion and granted the defendants' summary judgment motion in part, dismissing Smith's claims for unpaid wages, overtime, wrongful termination, and criminal penalty for non-payment of wages and denied the defendants' summary judgment motion on Smith's claims for unpaid commissions and for business libel/interference with business opportunities. Also on November 17, 2008, the trial court issued a pretrial order setting a date and procedure for the parties to submit a proposed final pretrial order, which would set the guidelines for trial of Smith's remaining claims. On November 24, 2008, Smith moved for reconsideration of the November 17, 2008 order. The trial court denied that motion on December 22, 2008.

On December 29, 2008, Smith filed a notice of appeal from both the November 17, 2008 and December 22, 2008 orders. On January 12, 2009, the appellees moved to dismiss this appeal. Appellant Smith filed his opposition on January 21, 2009.

Since motions may be decided without oral argument, Kosrae v. Langu, [2008] FMSC 56; 16 FSM Intrm. 83, 86 (App. 2008); Christian v. Urusemal, [2006] FMSC 25; 14 FSM Intrm. 291, 293 (App. 2006), and the issue is straightforward, we decide the motion on the papers.

II. DISCUSSION

The appellees contend that we lack jurisdiction over this appeal because it is not from a final order or judgment since the trial court only granted a partial summary judgment and none of the Appellate Procedure Rule 4(a)(1) exceptions to the final order or judgment rule apply. The appellees also note that Smith has not complied with the Appellate Procedure Rule 5(a) requirements under which we could permit an interlocutory appeal.

Relying on Civil Rule 54(b), Smith asserts that the trial court entered a final judgment on fewer than all his claims and that thus that decision is appealable. In his view, it is a final decision because, at least after the denial of his reconsideration motion, the November 17, 2008 partial summary judgment could not be subject to revision at anytime.

Rule 54(b) provides:

When more than one claim for relief is presented in an action . .&# or when multiple partiearties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Smith contends that because the clerk signed the partial summary judgment order as "entered" and because his reconsideration motion was denied, the partial summary judgment order must be one that is not subject to revision at any time and that a final judgment must have been entered on fewer than all of his claims.

Just because the trial court denied Smith's request for reconsideration does not mean that the November 17, 2008 order is not subject to revision at any time. Even though the trial court may be very unlikely to revise it, the November 17, 2008 order remains legally capable of being revised (under the appropriate circumstances) any time before the trial court enters a final judgment.

A court can enter judgment on less than all of the claims in a case only if the court makes both an express determination that there is no just cause for delay and an express direction for entry of judgment. FSM Civ. R. 54(b). "Both elements must be present to give a partial adjudication final judgment status. '[W]hen either element is absent, even if only because of oversight or a failure to appreciate that the case is one that is within Rule 54(b),' the partial adjudication does not carry final judgment status." Kitti Mun. Gov't v. Pohnpei, [2003] FMSC 19; 11 FSM Intrm. 622, 628 (App. 2003) (quoting 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2660, at 147 (3 1998)).

.

When a trial court dismisses less than all of the claims but does not expressly make the required findings under Rule 54(b), that dismissal is not a final decision. . at 629. We have carefcarefully read both of the trial court orders that Smith appeals from and nowhere in either order did the trial court either expressly determine that there was no just cause for delay or expressly direct the entry of judgment. Since the trial court must do both for a partial adjudication to be deemed a final decision capable of being appealed, this appeal is not from a final decision.

Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders or partial adjudications will eventually merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding 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). This is the type of piecemeal appeal that the final order rule was designed to prevent.

III.

A timely notice of appeal from a final decision is a prerequisite to an appellate court's jurisdiction over an appeal. Berman v. College of Micronesia-FSM, [2008] FMSC 32; 15 FSM Intrm. 582, 589 (App. 2008). Since this appeal is not from a final decision, it is accordingly dismissed for lack of jurisdiction. This dismissal is without prejudice to any future appeal from a final decision. Heirs of George, 15 FSM Intrm. at 562-63.

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