Kosrae v Smith [2009] FMSC 40; 16 FSM Intrm. 578 (App. 2009) (8 October 2009)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K3-2008

STATE OF KOSRAE,
Appellant,

vs.

JEFFREY SMITH and MASON ALIK,
Appellees.

___________________

ORDER OF DISMISSAL

Decided: October 8, 2009

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

APPEARANCES:

For the Appellant: Snyder H. Simon, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944

For the Appellee: Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review  Briefs, Record, and Oral Argument
Although, ordinarily, the appellate court would consider the clerk's failure to provide a requested English-language transcript as good cause to grant an enlargement of time for an appellant to file its opening brief, when the appellant did not request the transcript until seventeen months after it filed its notice of appeal and when the appellant gives no explanation why its transcript request was made then although the rules require an appellant to make its transcript request within ten days after filing the notice of appeal, it is evidence of a lack of good faith because it is the appellant's burden to apply, before its time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee and, failing extraordinary circumstances, it constitutes neglect which will not be excused. If no extraordinary circumstances are present, the appellant's motion to enlarge time for it to file its opening brief will be denied. Kosrae v. Smith, 16 FSM Intrm. ---, --- (App. 2009).

Appellate Review  Dismissal
When deciding a Rule 31(c) motion to dismiss, the appellate court considers factors including the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reasons for appellant's failure to file on time; and extent of appellant's efforts in mitigation. But when an appellant has not served on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review; when there was no excuse for the appellant not knowing that its brief was due August 12, 2009; and when there was no excuse for its seventeen-month delay in requesting an English-language transcript, the appellant's neglect is inexcusable, and since the appellant's misleading statement that it had requested an English-language transcript but the Kosrae clerk had not provided it was completely unacceptable, the appeal will be dismissed. Kosrae v. Smith, 16 FSM Intrm. ---, --- (App. 2009).

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COURT'S OPINION

PER CURIAM:

This appeal was filed April 3, 2008. By the single justice's July 3, 2009 order, the appellant's opening brief was due forty days later  August 12, 2009. In a motion dated (and faxed) September 2, 2009, and filed September 7, 2009, the appellant, State of Kosrae, erroneously stated that the motion was timely because the brief filing deadline was September 2, 2009; stated that it had requested an English-language transcript from the Kosrae State Court of the proceedings below, but that the court had not yet produced it; and sought an enlargement of time to file its brief until after the transcript had been produced.

On September 10, 2009, the appellees filed their opposition to any enlargement for the State, attaching a copy of the State's transcript request dated September 2, 2009, and an affidavit from the state court clerk stating that no English-language transcript request had been received before September 3, 2009. The appellees also moved to dismiss this appeal for the State's failure to file its opening brief.

The State's response was that a good-faith calendaring mistake was responsible for its erroneous belief that its enlargement motion was timely. The State further contended that its neglect is excusable; that the lack of an English-language transcript is good cause to grant an enlargement even though the motion was not timely; and that the court will need the transcript to arrive at its decision on the merits.

Ordinarily, we would consider the clerk's failure to provide a requested English-language transcript as good cause to grant an enlargement of time for an appellant to file its opening brief. However, in this case, the State did not request the English-language transcript until September 2, or 3, 2009. Not only is there no reason why the State could not have made its request earlier, but also our rules require an appellant to make its transcript request "[w]ithin 10 days after filing the notice of appeal." FSM App. R. 10(b)(1). The State gives no explanation why its transcript request was made seventeen months after it filed its notice of appeal. Furthermore, it is the appellant's burden to apply, before its time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee, and until such application for extended time to file a brief is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused. Palsis v. Tafunsak Mun. Gov't, [2008] FMSC 59; 16 FSM Intrm. 116, 130 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 114 (App. 2008). No extraordinary circumstances are present.

The State's motion to enlarge time for it to file its opening brief is therefore denied.

We now turn to the appellees' motion to dismiss. It is within our discretion to dismiss an appeal if an appellant files its brief late. When deciding a Rule 31(c) motion to dismiss, we consider factors including the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reasons for appellant's failure to file on time; and extent of appellant's efforts in mitigation. Cuipan v. FSM, [2001] FMSC 23; 10 FSM Intrm. 323, 325 (App. 2001). Also, an appellant must, not later than 10 days after the date of the appellate clerk's record-ready notice, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. FSM App. R. 30(b); Cuipan, 10 FSM Intrm. at 326. The State did not comply with this requirement either and might not have been able to without a transcript. (The appellate clerk's record-ready notice was filed and served on August 25, 2008, over a year earlier.)

Although an attorney practicing before us is expected to know the rules and abide by them, nevertheless, a preference exists for resolution of matters on the merits, and we will give this preference effect within the bounds of reason and except where a specific rule, law, or conduct of a party or his counsel directs a different result. O'Sonis v. Bank of Guam, [2000] FMSC 30; 9 FSM Intrm. 356, 361 (App. 2000). But we find no excuse for the State not knowing that its brief was due August 12, 2009, or for its seventeen-month delay in requesting an English-language transcript. The State's neglect is inexcusable. Additionally, we find completely unacceptable the misleading statement of the State's assistant attorney general that the State had requested an English-language transcript but the Kosrae clerk had not provided it.

Accordingly, this appeal is dismissed. FSM App. R. 31(c). The State's counsel is warned to ensure that his future representations to the court are true and are not misleading.

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