Nena v Saimon [2013] FMSC 41; 19 FSM R. 136 (App. 2013) (10 September 2013)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K7-2013
KSC Civil Action No. 39-2013

GINN P. NENA,
Appellant,

vs.

HAMLIN SAIMON, JOSHAIA SAIMON, and LENORA T. SIGRAH,
Appellees.

___________________________________

ORDER DENYING DISMISSAL

Martin G. Yinug
Chief Justice

Decided: September 10, 2013

APPEARANCES:

For the Appellant: Sasaki L. George, Esq.

P.O. Box 780

Tofol, Kosrae FM 96944

For the Appellees: Snyder H. Simon, Esq.

P.O. Box 1017

Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review - Decisions Reviewable
Generally, only final orders of the Kosrae State Court may be appealed to the FSM Supreme Court appellate division, but the FSM Supreme Court may also hear appeals from the Kosrae State Court in any other civil case in which an appeal to the FSM Supreme Court appellate division is permitted as a matter of law. Nena v. Saimon, 19 FSM R. 136, 138 (App. 2013).

Appellate Review - Decisions Reviewable
Since under Kosrae state law a party may appeal from the Kosrae State Court to the appellate court from an interlocutory order granting, continuing, modifying, refusing or dissolving an injunction, or refusing to dissolve or modify an injunction, an appeal from a Kosrae State Court order granting a preliminary injunction is thus an appeal to the FSM Supreme Court appellate division that is permitted by Kosrae state law. Nena v. Saimon, 19 FSM R. 136, 138 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Motions
A single FSM Supreme Court appellate division 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, but a single justice may deny a motion to dismiss an appeal. Nena v. Saimon, 19 FSM R. 136, 138 (App. 2013).

Appellate Review - Dismissal
Grounds for dismissal that go to either the merits of the preliminary injunction or the merits of the underlying case are not grounds for dismissal before the parties brief and argue the appeal. Nena v. Saimon, 19 FSM R. 136, 138 (App. 2013).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

On September 4, 2013, the appellees filed their Motion to Dismiss Appeal. They contend that the appeal should be dismissed because Ginn P. Nena does not have standing since he does not own land called Inwalul, because his due process rights were not violated, and because the appeal is not from a final order and the law disfavors interlocutory appeals of an injunction order. Appellant Ginn P. Nena's opposition to the motion to dismiss was filed on August 27, 2013.

This appeal is from the Kosrae State Court's July 12, 2013 Order Granting Motion for Temporary Restraining Order; Preliminary Injunction in Civil Action No. 39-13. Generally, only final orders of the Kosrae State Court may be appealed to the FSM Supreme Court appellate division. See In re Parcel 79T11[2008] FMSC 45; , 16 FSM Intrm. 24, 25 (App. 2008); Heirs of George v. Heirs of Tosie, [2008] FMSC 28; 15 FSM Intrm. 560, 562 (App. 2008); Kosrae v. Langu, [1999] FMSC 37; 9 FSM Intrm. 243, 246 (App. 1999); see also FSM App. R. 4(a)(1)(A).

The order appealed from is not a final order, but from an order granting a preliminary injunction. The FSM Supreme Court may also hear appeals from the Kosrae State Court "in any other civil case in which an appeal to the FSM Supreme Court appellate division is permitted as a matter of law." FSM App. R. 4(a)(1)(E). Under Kosrae state law "[a] party may appeal from the [Kosrae State] Court to the appellate court . . . [f]rom an interlocutory rder granting, continuing, modifying, refusing or dissolving an injunction, or refusing to dissolve or modify an injunction." Kos. S.C. § 6.404(his a fromJuly 12, 202, 2013 order granting a preliminliminary iary injunction is thus an appeal to the FSM Supreme Court appellate divisiich is permitted as a matter of Kosrae state law.

A single FSM Supreme Court aprt appellate division 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, but a single justice may deny a motion to dismiss an appeal. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 209 (App. 2012) (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).

The other grounds for dismissal raised by the movants go to either the merits of the preliminary injunction or the merits of the underlying case and, as such, or not grounds for dismissal at this stage. Id. (when the appellees' ground for dismissal is the issue that the appellant will raise, brief, and argue on appeal, the court will not permit the appellees to short circuit the appellate process by a preemptive dismissal motion).

Accordingly, the motion to dismiss is denied.

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