Heirs of Moses Henry v Heirs of Elise Akinaga [2013] FMSC 7; 18 FSM Intrm. 542 (App. 2013) (25 January 2013)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K2-2011

HEIRS OF MOSES HENRY and JOHN SIGRAH,
Appellants,

vs.

HEIRS OF ELISE AKINAGA,
Appellees.
_____________________________________________ )

ORDER OF DISMISSAL WITHOUT PREJUDICE

Decided: January 25, 2013

BEFORE:

Hon. Martin G. Yinug, Chief Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Benjamin Rodriguez, Temporary Justice, FSM Supreme Court*

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellants: Alik Jackson, Esq.

Richard D. Gronna, Esq. (pro hac vice)

P.O. Box PS-64

Palikir, Pohnpei FM 96941

For the Appellees: Snyder H. Simon, Esq.

P.O. Box 1017

Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
Since an appellate court is without jurisdiction to consider an appeal if there is no timely notice of appeal or if there was no final decision in the court below, the appellate court should rule on jurisdictional matters first because, without jurisdiction, any ruling the appellate court makes on the merits would merely be an advisory opinion which it does not have the jurisdiction to issue. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 545 (App. 2013).

Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
If an otherwise timely notice of appeal was indeed premature and of no effect because of a timely petition for rehearing in the Kosrae State Court, the FSM Supreme Court appellate division would then be without jurisdiction. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 545 (App. 2013).

Appellate Review; Civil Procedure
The Kosrae Rules of Appellate Procedure govern procedure in the Kosrae State Court trial division when considering an appeal from the Kosrae Land Court. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 545 n.1 (App. 2013).

Appellate Review - Rehearing
Kosrae Appellate Rule 19 provides that a petition for rehearing may be filed within 14 days after entry of the Kosrae State Court's judgment or decision on an appeal from the Kosrae Land Court. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 545 (App. 2013).

Appellate Review - Notice of Appeal
When the FSM Supreme Court has not previously considered whether, under FSM Appellate Rule 4(a)(4), a procedural rule which is identical or similar to, or which is drawn from, a U.S. counterpart, Kosrae Appellate Rule 19(a) is a comparable state court rule, it may look to U.S. sources for guidance in interpreting the rule. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 545 n.2 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
Since Kosrae Appellate Rule 19(a) is a state court rule that seeks relief equivalent to relief afforded by FSM Civil Procedure Rules 52(b) or 59 because it seeks to obtain a decision or judgment different from the one entered, when the notice of appeal is filed before the disposition of a Rule 19 rehearing petition, there is no final decision or judgment for the FSM Supreme Court appellate division to review and it must dismiss the appeal for lack of jurisdiction. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 546 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
When a petition for rehearing still remains undecided in the Kosrae State Court, the FSM Supreme Court appellate division will dismiss the appeal for lack of jurisdiction with notice that once the Kosrae State Court has disposed of the rehearing petition, any party may file a new notice of appeal, and the FSM Supreme Court appellate division proceedings will start again. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 546 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Decisions Reviewable
When a petition for rehearing was not explicitly denied, there was no denial. An explicit notice that a Kosrae Appellate Rule 19 petition had been denied would have put the appellants on notice that they had 42 days to file a new (and effective) notice of appeal. Therefore the FSM Supreme Court's dismissal of the premature appeal is without prejudice to any future appeal since the rehearing petition is still pending in the Kosrae State Court. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 546 (App. 2013).

Appellate Review - Briefs, Record, and Oral Argument; Appellate Review - Notice of Appeal; Appellate Review - Rehearing
Once the Kosrae State Court has explicitly made its ruling on the appellants' petition for rehearing in that court, the appellants may, if they are still aggrieved, file a new notice of appeal within the 42-day appeal period after that denial and ask that their briefs and appendixes already filed in this appeal be used in the new appeal. Heirs of Henry v. Heirs of Akinaga, [2013] FMSC 7; 18 FSM Intrm. 542, 546 (App. 2013).

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This appeal is from the Kosrae State Court's July 7, 2011 decision affirming the Kosrae Land Court's August 26, 2010 decision barring, on res judicata grounds, the claims of the Heirs of Moses Henry and John and Aliksa Sigrah to the land Innem (also known as Lot 450 and 079-K-01). We conclude that this appeal is premature and that we are without jurisdiction to hear it. We therefore dismiss this appeal without prejudice. Our reasoning follows.

I. Procedural History

On June 19, 2008, the Kosrae Land Court concluded that ownership of Lot No. 079-K-01 had not been determined earlier by the Trust Territory High Court since that court's decision (as well as a 1985 determination of ownership) was only for Parcel No. 043-K-06 and not for No. 079-K-01 so therefore res judicata could not apply. The Land Court dismissed the Heirs of Akinaga, who then appealed to the Kosrae State Court.

On March 30, 2010, the Kosrae State Court vacated the Land Court decision and remanded the case to the Land Court. The Kosrae State Court ruled that the Heirs of Akinaga had not waived their res judicata defense. Applying the res judicata doctrine to the case before it, the Kosrae State Court ruled that, since the Trust Territory High Court had combined the three civil actions for trial and that since all the parties in those actions were claiming the same land, all the parties were privies to the Trust Territory High Court decision and that the Trust Territory High Court decision had to be upheld. Concluding that Parcel No. 079-K-01 was part of Lot 450 (shown on the map as owned by Elise Akinaga), the Kosrae State Court overturned the Land Court's dismissal of the Heirs of Akinaga and remanded the matter for the Land Court to

issue written findings and a decision consistent with statutory and procedural requirements. The Kosrae Land Court shall issue a decision on Parcel 079-K-01, to reflect the ownership and boundaries of the subject parcel consistent with the prior TTHC cases, and on the Japanese survey maps, sketches and boundary descriptions contained therein.

Memo. of Decision at 25 (Mar. 30, 2010). On August 26, 2010, the Land Court ruled that the Heirs of Akinaga were the true owners of Parcel No. 079-K-01.

The Heirs of Moses Henry and John Sigrah (collectively "the appellants") appealed that decision to the Kosrae State Court. On July 7, 2011, the Kosrae State Court ruled that res judicata and the Trust Territory High Court judgment barred the appellants' claims to Parcel 079-K-01.

On July 19, 2011, the appellants filed a petition for rehearing in the Kosrae State Court and a separate motion to recuse the Kosrae State Court justice. And on July 26, 2011, they filed a notice of appeal to the FSM Supreme Court appellate division. On August 4, 2012, the Kosrae State Court denied the motion to recuse.

On November 30, 2011, the appellees, the Heirs of Akinaga, filed a motion to dismiss this appeal. They contended that this appeal must be dismissed because it was barred by the res judicata doctrine; because the appeal was 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. On March 16, 2012, a single appellate justice denied the motion on all grounds except that the notice of appeal was premature and asked the parties to 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. Heirs of Henry v. Heirs of Akinaga, [2012] FMSC 13; 18 FSM Intrm. 207, 210-11 (App. 2012). The single justice ruled that there was insufficient information in the record to determine the reconsideration motion's nature or even if the motion was ever decided and invited the parties to supplement their briefs on whether it 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 not been decided, what effect would that have and how should the court and the parties proceed. Id. at 210.

II. Jurisdictional Issue

The Heirs of Akinaga briefed this issue. We rule on this issue first since the matter is jurisdictional. An appellate court is without jurisdiction to consider an appeal if there is no timely notice of appeal, Jonah v. FSM Dev. Bank, [2011] FMSC 22; 17 FSM Intrm. 506, 508 (App. 2011), or if there was no final decision in the court below, Iriarte v. Individual Assurance Co., [2011] FMSC 62; 17 FSM Intrm. 356, 359 (App. 2011). Without jurisdiction, any ruling we make on the merits would merely be an advisory opinion which we do not have the jurisdiction to issue, seeKosrae v. Jim, [2010] FMSC 14; 17 FSM Intrm. 97, 99 (App. 2010); Zhang Xiaohui v. FSM, [2007] FMSC 30; 15 FSM Intrm. 162, 167-68 (App. 2007); Fritz v. National Election Dir., [2003] FMSC 37; 11 FSM Intrm. 442, 444 (App. 2003).

III. Appellees' Issue of Appellate Court Jurisdiction

The Heirs of Akinaga 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 since, on July 19, 2011, the appellants filed in the Kosrae State Court a petition for rehearing that has apparently never been ruled on.

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 merits. The notice of appeal was filed within 42 days after the memorandum of decision was entered. The Heirs of Akinaga would, however, be correct that we lack jurisdiction if the July 19 rehearing petition was timely and if it were considered analogous to a Rule 52(b) motion (for the court to amend its findings or make additional findings and amend the judgment accordingly) or to a Rule 59 motion (for a new trial or to alter or amend judgment), 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). The rule further provides that "[a] notice of appeal filed before the disposition of any of the above motions shall have no effect," and that "[a] new notice of appeal must be filed within the prescribed time [42 days] measured from the entry of the order disposing of the motion . . . ." Id. If the July206, 2012 notice of appeal was indeed premature and of no effect because of the July 19, 2011 petition for rehearing, uld te witjurisdiction.

The Kosrae State Court decision was entered ored on Juln July 7, y 7, 2011. Kosrae Appellate Rule[1] 19 provides that "[a] petition for rehearing may be filed within 14 days after entry of judgment or decision." Kos. App. R. 19(a). The appellants' July 19, 2011 petition for rehearing was thus timely filed.

In U.S. practice,[2] a petition for rehearing timely filed in a U.S. Circuit Court of Appeal under U.S. Federal Rule of Appellate Procedure Rule 40(a) (similar to Kosrae Appellate Procedure Rule 19(a) and from which the Kosrae rule appears to have ultimately been drawn) tolls the time to petition for certiorari (appeal to) the U.S. Supreme Court. Missouri v. Jenkins, [1990] USSC 55; 495 U.S. 33, 45[1990] USSC 55; , 110 S. Ct. 1651, 1660, 109 L. Ed. 2d 31, 50 (1990). "To put the matter another way, while the petition for rehearing is pending, there is no 'judgment' to be reviewed." Id. at 46, 110 S. Ct. at 1660, 109 L. Ed. 2d at 51.

Following this reasoning, Kosrae Appellate Rule 19(a) is a state court rule that seeks relief equivalent to relief afforded by FSM Civil Procedure Rules 52(b) or 59 because it seeks to obtain a decision or judgment different from the one entered.[3] And since the notice of appeal was filed before the disposition of the Rule 19 rehearing petition (the rehearing petition still has not been decided), there is no final decision or judgment for us to review. We must dismiss this appeal for lack of jurisdiction. The Heirs of Akinaga contend that this dismissal should be with prejudice.

We lack jurisdiction because of a premature notice of appeal - a notice of appeal filed before the disposition of the rehearing petition. Since the rehearing petition still remains undecided, we will dismiss the appeal for lack of jurisdiction with notice that once the Kosrae State Court has disposed of the rehearing petition, any party may file a new notice of appeal, and the FSM Supreme Court appellate division proceedings will start again.

Even if the issues raised in the rehearing petition were addressed in the Kosrae State Court's August 4th denial of the motion to recuse the sitting Kosrae State Court justice, which motion had been filed separately on the same day as the rehearing petition, there was no explicit separate denial of the rehearing petition. Since the rehearing petition was not explicitly denied, we are inclined to consider that there was no denial. An explicit notice that the Rule 19 petition had been denied would have put the appellants on notice that they had 42 days to file a new (and effective) notice of appeal. We therefore conclude that our dismissal is without prejudice to any future appeal.

IV. Conclusion

Accordingly, this appeal is dismissed without prejudice. Once the Kosrae State Court has explicitly made its ruling on the appellants' July 19, 2011 petition for rehearing, the appellants may, if they are still aggrieved, file a new notice of appeal within the 42-day appeal period after that denial and ask that their briefs and appendixes already filed in this appeal be used in the new appeal.

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^[1] The Kosrae Rules of Appellate Procedure govern procedure in the Kosrae State Court trial division when considering an appeal from the Kosrae Land Court. Heirs of Tara v. Heirs of Kurr, 14 FSM Intrm. 521, 523 (Kos. S. Ct. Tr. 2007); Heirs of Palik v. Heirs of Henry, [2004] FMKSC 2; 12 FSM Intrm. 415, 421 (Kos. S. Ct. Tr. 2004).

^[2] When an FSM court has not previously construed the effect of a procedural rule which is identical or similar to, or which is drawn from, a U.S. counterpart, it may look to U.S. sources for guidance in interpreting the rule. See, e.g., Palsis v. Tafunsak Mun. Gov’t[2008] FMSC 59; , 16 FSM Intrm. 116, 123 n.4 (App. 2008); Heirs of George v. Heirs of Dizon, [2008] FMSC 58; 16 FSM Intrm. 100, 107 n.4 (App. 2008); Kosrae v. Langu, [2008] FMSC 56; 16 FSM Intrm. 83, 87 n.1 (App. 2008). We have not previously considered whether Kosrae Appellate Rule 19(a) is a comparable state court rule within the meaning of FSM Appellate Rule 4(a)(4).

^[3] These motions and the petition for rehearing all have one thing in common Ä if the movant or the petitioner is successful the result would be something the movant or petitioner probably would not want to appeal since they would have already obtained the relief they were seeking.