Mori v Hasiguchi [2011] FMSC 50; 18 FSM Intrm. 83 (App. 2011) (14 November 2011)

FSM SUPREME COURT TRIAL DIVISION

APPEAL CASE NO. C1-2011
Civil Action No. 2008-1111

EMANUEL "MANNY" MORI,
Appellant,

vs.

MYRON HASIGUCHI, ELSA LAGRADILLA, TRUK TRANSPORTATION CO., INC., BARNEY OLTER, MARION OLTER, ROSELT POBUK, LISA OLTER, and DWIGHT OLTER,
Appellees.
__________________________________________

ORDER OF DISMISSAL

Decided: November 14, 2011

APPEARANCES:

For the Appellant: Sabino S. Asor, Esq.

P.O. Box 95

Weno, Chuuk FM 96942

For the Appellees: Stephen V. Finnen, Esq.

(Hasiguchi, Lagradilla, Truk Transp.) P.O. Box 1450

Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review - Motions
An opposition to a motion to enlarge that is not entitled as a motion to dismiss but which specifically asks the court to dismiss the appeal is a motion to dismiss because a thing is what it is regardless of what someone calls it. Mori v. Hasiguchi, [2011] FMSC 50; 18 FSM Intrm. 83, 84 (App. 2011).

Appellate Review - Decisions Reviewable
The FSM Supreme Court appellate division may, in civil actions, hear appeals from the trial division only from final decisions, interlocutory orders disposing of injunctions, interlocutory orders with respect to receivers, interlocutory decrees determining rights and liabilities of parties in admiralty cases. Generally, an order is not final when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action. Accordingly, a decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of appeal. Mori v. Hasiguchi, [2011] FMSC 50; 18 FSM Intrm. 83, 84 (App. 2011).

Appellate Review - Decisions Reviewable
When the appealed order did not affect the substantial rights of the parties, and the cause was retained for further action, as evidenced by the subsequent orders, the appealed order was not final as to the issue it resolved, and the appellate court has no jurisdiction to hear the appeal. Mori v. Hasiguchi, [2011] FMSC 50; 18 FSM Intrm. 83, 84 (App. 2011).

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COURT'S OPINION

PER CURIAM:

Appellant Emanuel "Manny" Mori ("Mori") initiated this appeal on June 6, 2011, as to the trial court's May 9, 2011 order severing Mori's October 26, 2009 Motion to Compel Discovery. Mori filed a designation of portions of the record for appeal on September 29, 2011, or 115 days after the notice of appeal. Mori then filed a Motion for Enlargement or Abeyance on October 14, 2011, based on activity in the trial court, including, inter alia, an August 4, 2011 denial of Mori's Motion to Stay Proceedings Pending Appeal, and an August 17, 2011 order partially granting and partially denying some of Mori's discovery requests-"interrogatories and requests for production that were the subjects of the Motion to Compel on appeal." Appellant's Mot. Enlargement at 2. On October 19, 2011, appellee Truk Transportation Company, Inc. ("TTC") filed its opposition to Mori's motion for enlargement, arguing that the May 9, 2011 order from which Mori appeals is not final and therefore not appealable under FSM App. R. 4(a)(1)(A). Although TTC's opposition is not entitled as a Motion to Dismiss, TTC specifically asks us to dismiss the appeal. Appellee's Opp'n at 3. As we have stated before, "A thing is what it is regardless of what someone calls it." McIlrath v. Amaraich, [2003] FMSC 24; 11 FSM Intrm. 502, 505 (App. 2003). We therefore regard TTC's opposition as a motion to dismiss as well.

We may take appeals from the Trial Division in civil actions only from final decisions, interlocutory orders disposing of injunctions, interlocutory orders with respect to receivers, interlocutory decrees determining rights and liabilities of parties in admiralty cases. FSM App. R. 4(a)(1). "Generally, an order is not final where the substantial rights of the parties involved in the action remain undetermined and where the cause is retained for further action. Accordingly, a decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of appeal." 4 Am. Jur. 2dAppellate Review§ 90, at 714 (rev. ed. 1995) (footnote omitted).

Here, the appealed order did not affect the substantial rights of the parties, and the cause was retained for further action, as evidenced by the subsequent orders. Therefore, the appealed order was not final as to the issue it resolved, and we have no jurisdiction to hear this appeal.

Now therefore we hereby deny Mori's Motion for Enlargement or Abeyance and we hereby grant TTC's Motion to Dismiss the Appeal.

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