Heirs of Henry v Heirs of Akinaga [2012] FMSC 13; 18 FSM Intrm. 207 (App. 2012) (16 March 2012)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K2-2011

HEIRS OF MOSES HENRY and JOHN SIGRAH,
Appellants,

vs.

HEIRS OF AKINAGA,
Appellees.
_____________________________________________

ORDER DENYING DISMISSAL AND REQUIRING SUPPLEMENTAL BRIEFS

Martin G. Yinug
Chief Justice

Decided: March 16, 2012

APPEARANCE:

For the Appellees: Snyder H. Simon, Esq.

P.O. Box 1017

Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review - Dismissal; Appellate Review - Motions
A single FSM Supreme Court appellate division justice may entertain and may grant or deny any request for relief which under the appellate rules may properly be sought by motion except that a single justice may not dismiss or otherwise determine an appeal other than on all the parties' stipulation or on a party's failure to comply with the appellate rules' timing requirements. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209 (App. 2012).

Appellate Review - Dismissal; Appellate Review - Motions
A single justice may deny a motion to dismiss an appeal. A single justice's order denying a motion to dismiss an appeal is a procedural order requiring the appeal to be briefed and put on the calendar; it is not a determination having preclusive effect on the appeal's validity, and it remains subject to correction by the full appellate panel. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209 (App. 2012).

Appellate Review - Dismissal
When the appellees seek to have the appeal's merits decided without the benefit of briefing and argument because the appellees' ground for dismissal is the basis on which the lower court decided the case and which is therefore either the issue or one of the issues that the appellants will raise, brief, and argue on appeal, the court will not permit the appellees to short circuit the appellate process. Once the appellants brief the issue, the appellees must, in due course, be prepared to brief and argue it. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209 (App. 2012).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
If a reconsideration motion in Kosrae State Court were considered analogous to a Rule 50(b) motion or to a Rule 52(b) motion or to a Rule 59 motion and were timely, a notice of appeal filed before the motion was decided would be premature because for any equivalent relief under comparable rules of any state court from which an appeal may lie, the time for appeal for all parties runs from the entry of the order denying a new trial or granting or denying any other such motion and a notice of appeal filed before the disposition of any of the motion would have no effect, and a new notice of appeal would have to be filed within the 42 days following the denial. If the notice of appeal was indeed premature because of a reconsideration motion, then the court would be without jurisdiction. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209-10 (App. 2012).

Appellate Review - Stay - Civil Cases - Money Judgments
The rule requiring a supersedeas bond to be posted before a stay may granted pending appeal is applicable only to appeals from money judgments. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Dismissal; Appellate Review - Stay - Civil Cases
An appellant's failure to obtain a stay does not affect an appeal's validity or the appellate court's jurisdiction over it. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review; Costs
If the appellees wish the appellants to provide a bond necessary to ensure payment of costs on appeal, they must first apply to the court appealed from. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Notice of Appeal
Since an appeal may be taken by filing a notice of appeal with the clerk of the FSM Supreme Court trial division in the state in which the decision appealed from was made or, at the appellant's option, directly with the clerk of the FSM Supreme Court appellate division, a notice of appeal from the Kosrae State Court may be filed with the FSM Supreme Court trial division clerk on Kosrae instead of the appellate division clerk on Pohnpei. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Dismissal
Allegations that the appellants' counsel have or had a conflict or conflicts are not a ground on which an appeal can be dismissed. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Motions
A single appellate justice does not have the authority to sanction attorneys. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Dismissal; Appellate Review - Frivolous Appeals
If the appellees seek damages under Appellate Rule 38, its inclusion in a preliminary motion to dismiss is improper because the determination of whether to award Rule 38 damages is a two step process - first, it must be determined that the appeal was frivolous and second, it must be determined that sanctions are appropriate. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

Appellate Review - Frivolous Appeals
In all cases in which an appellee seeks Rule 38 damages, an appellee must file a separate written motion at least seven days before the date scheduled for oral argument in order to give the appellant time to respond to the motion. The appellee's motion gives the appellant the notice it is due, and its opportunity to be heard may be through filing a written response. If a written response is filed, the court, in its discretion, may allow inclusion of the issue in the oral argument on the merits; otherwise it will be decided on the papers. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210 (App. 2012).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

On November 30, 2011, the appellees filed their Motions to Dismiss Appeal; and for Sanctions. The appellants did not file an opposition. Nevertheless, the motion to dismiss is denied. The reasons follow.

A single FSM Supreme Court appellate division justice may entertain and may grant or deny any request for relief which under the appellate rules may properly be sought by motion except that a single justice may not dismiss or otherwise determine an appeal other than on all the parties' stipulation or on a party's failure to comply with the appellate rules' timing requirements. FSM App. R. 27(c); Pohnpei v. AHPW, Inc., [2006] FMSC 1; 14 FSM Intrm. 1, 11 (App. 2006). But a single justice may deny a motion to dismiss an appeal. A single appellate justice's order denying a motion to dismiss an appeal is a procedural order requiring the appeal to be briefed and put on the calendar; it is not a determination having preclusive effect on the appeal's validity, and it remains subject to correction by the full appellate panel. AHPW, Inc., 14 FSM Intrm. at 12.

The appellees contend that this appeal must be dismissed because it is barred by the doctrine of res judicata, because the appeal is premature and untimely, because the appellants failed to request a stay or a supersedeas bond, and because the notice of appeal was defective since it was filed in the FSM Supreme Court trial division. The appellees also seek to have the appellants' counsel sanctioned.

Res judicata, the appellees' first ground for dismissal, is the basis on which the Kosrae State Court decided the case and which therefore is either the issue or one of the issues that the appellants will raise, brief, and argue on appeal. The appellees, in their motion, thus seek to have the appeal's merits decided without the benefit of briefing and argument. The court will not permit them to short circuit the appellate process. Res judicata is an issue which, once briefed by the appellants, the appellees must, in due course, be prepared to brief and argue.

The appellees contend that the July 26, 2011 notice of appeal was premature because it was filed before a final judgment or order was entered in the Kosrae State Court. The July 7, 2011 memorandum of decision appealed from appears to be a final order or judgment, in which the Kosrae State Court rendered its opinion on the case's merits. The notice of appeal was filed within 42 days after the Kosrae State Court memorandum of decision was entered. The appellees apparently base this ground either on the later July 19, 2011 filing of a motion to disqualify the Kosrae State Court justice that was denied on August 4, 2011, or on a motion for reconsideration that was filed on July 19, 2011, that has apparently never been ruled upon. The disqualification motion obviously is not the type of motion that would make the July 26, 2011 notice of appeal premature. But if the reconsideration motion were considered analogous to a Rule 50(b) motion or to a Rule 52(b) motion or to a Rule 59 motion and were timely, the appellees would be correct because "for any equivalent relief under comparable rules of any state court from which an appeal may lie, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." FSM App. R. 4(a)(4). "A notice of appeal filed before the disposition of any of the above motions shall have no effect," and a new notice of appeal would have to be filed within the 42 days following the denial. Id. If the notice of appeal was indeed premature because of the July 19, 2011 reconsideration motion, then the court would be without jurisdiction.

But there is insufficient information in the record to determine the reconsideration motion's nature or even if the motion was ever decided. The parties are therefore invited to supplement their briefs, no later than April 19, 2012, on whether the reconsideration motion was ever decided and if it was, when was it decided, and if it was decided after the notice of appeal was filed, was the July 26, 2011 notice of appeal without any effect, and if it has never been decided, what effect does that have and how should the court and the parties proceed.

The appellees also contend that the appeal must be dismissed because the appellees have not obtained a supersedeas bond or a stay. This ground is frivolous. The rule requiring a supersedeas bond to be posted before a stay may granted pending appeal is applicable only to appeals from money judgments. Pohnpei v. MV Hai Hsiang #36 (II)[1994] FMSC 45; , 6 FSM Intrm. 604, 605 (Pon. 1994). The matter appealed from is not a money judgment. More importantly, an appellant's failure to obtain a stay does not affect the validity of an appeal or the appellate court's jurisdiction over the appeal. And if the appellees' wish is that the appellants provide a bond "necessary to ensure payment of costs on appeal," they must first apply to the court appealed from. FSM App. R. 7.

The appellees further contend that the FSM Supreme Court lacks jurisdiction because the appellants filed their notice of appeal in the FSM Supreme Court trial division in Kosrae instead of with the FSM Supreme Court appellate division clerk on Pohnpei. This ground is also frivolous. An appeal "shall be taken by filing a notice of appeal with the clerk of the FSM Supreme Court trial division in the State in which the decision appealed from was made or, at the option of the appellant, directly with the clerk of the FSM Supreme Court appellate division." FSM App. R. 3(a). This rule clearly permits a notice of appeal from the Kosrae State Court to be filed with the FSM Supreme Court trial division clerk on Kosrae. Kosrae Island Credit Union v. Obet, [1995] FMSC 32; 7 FSM Intrm. 193, 194 (App. 1995); Tafunsak v. Kosrae, [1994] FMSC 24; 6 FSM Intrm. 467, 468 (App. 1994).

Lastly, the appellees contend that the appeal should be dismissed and that they should be awarded damages because the appellants' counsel have or had a conflict or conflicts and their clients' case is frivolous. The alleged conflicts are not a ground on which this appeal can be dismissed. A single appellate justice does not have the authority to sanction attorneys. Palsis v. Tafunsak Mun. Gov't, [2008] FMSC 59; 16 FSM Intrm. 116, 126 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 109-10 (App. 2008). If the appellees seek damages under Appellate Rule 38, its inclusion in a preliminary motion to dismiss is improper. The determination of whether to award Rule 38 damages is a two step process - first, it must be determined that the appeal was frivolous and second, it must be determined that sanctions are appropriate. FSM Dev. Bank v. Adams, [2004] FMSC 5; 12 FSM Intrm. 456, 462-63 (App. 2004); FSM Dev. Bank v. Yinug, [2004] FMSC 25; 12 FSM Intrm. 450, 452 (App. 2004); FSM Dev. Bank v. Yinug, 12 FSM Intrm. 437, 440 (App. 2004). In all cases in which an appellee seeks Rule 38 damages, an appellee must file a separate written motion at least seven days before the date scheduled for oral argument in order to give the appellant time to respond to the motion. The appellee's motion gives the appellant the notice it is due, and its opportunity to be heard may be through filing a written response. Yinug, 12 FSM Intrm. at 441. If a written response is filed, the court, in its discretion, may allow inclusion of the issue in the oral argument on the merits; otherwise it will be decided on the papers. Id. It will not be considered here.

Accordingly, the appellees' motion to dismiss is denied on all grounds except that the notice of appeal was premature. The parties shall, no later than April 19, 2012, file supplemental briefs on the effect under FSM Supreme Court Appellate Rule 4(a)(4) of the July 19, 2011 reconsideration motion on the July 26, 2011 notice of appeal.

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