Edwin v Kohler [2017] FMSC 15; 21 FSM R. 239 (App. 2017) (13 April 2017)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P9-2015

KALIO EDWIN, )
)
Appellant, )
)
vs. )
)
HERCULANO KOHLER, )
)
Appellee. )

__________________________________________ )

ORDER DENYING REHEARING

Decided: April 13, 2017

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court

APPEARANCE:

For the Appellant: Salomon M. Saimon, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review Rehearing
The deadline to file a petition for rehearing is fourteen days afterward. Edwin v. Kohler, 21 FSM R. 239, 240 (App. 2017).

Appellate Review Rehearing
Any motion made for reconsideration after the disposal of an appeal is a petition for rehearing. An untimely motion to reconsider is considered a motion to enlarge time to file such a petition as well as a petition for rehearing. Such a petition may be denied in its entirety as untimely filed. Edwin v. Kohler, 21 FSM R. 239, 240 (App. 2017).

Appellate Review Notice of Appeal
An October 22, 2015 notice of appeal was not timely filed since notices of appeal must be filed within forty-two days of entry of the order appealed from, and since October 16, 2015, was the forty-second day after the Pohnpei Supreme Court appellate division denied the petition for rehearing before it. Edwin v. Kohler, 21 FSM R. 239, 240 (App. 2017).

Appellate Review Rehearing
When the appellate court would still lack jurisdiction because the notice of appeal was untimely filed, it must deny a petition for rehearing even if it has overlooked or misapprehended other points of law or fact because a rehearing would not change the result the court still lacks jurisdiction. Edwin v. Kohler, 21 FSM R. 239, 240 (App. 2017).

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COURT’S OPINION

PER CURIAM:

On March 11, 2017, appellant Kailo Edwin filed his Motion to Reconsider; Rehearing, in which he seeks, under Appellate Rule 40, our reconsideration and reversal of our January 26, 2017 Order of Dismissal and the reinstatement of this appeal. We must deny this motion.

The deadline to file a petition for rehearing is fourteen days afterward. FSM App. R. 40(a). Any motion made for reconsideration after the disposal of an appeal case is a petition for rehearing, and an untimely motion to reconsider is considered a motion to enlarge time to file such a petition as well as a petition for rehearing. Jano v. FSM, 12 FSM R. 633, 634 (App. 2004). Such a petition may be denied in its entirety as untimely filed. Id. Edwin’s motion was filed considerably after the fourteen-day deadline has passed, and Edwin gives no reasons for its tardiness.

Edwin contends that we misapprehended or overlooked that there were actual due process questions raised under both the FSM and the Pohnpei Constitutions and that, in 2000, FSM national law governing corporations and partnerships applied because Pohnpei law did not regulate them at that time. Edwin therefore concludes that our ruling that we lacked jurisdiction because no question involving the FSM Constitution, national law, or treaties was involved must have been in error.

Even if that were true, we must still deny the petition. Edwin overlooks that we concluded, in a footnote, Edwin v. Kohler, 21 FSM R. 133, 135 n.1 (App. 2017) (citing Ruben v. Chuuk, 18 FSM R. 604, 607-08 (App. 2013)), that we also lacked jurisdiction since Edwin’s October 22, 2015 notice of appeal was not timely filed because "[n]otices of appeal must be filed within forty-two days of entry of the order appealed from. FSM App. R. 4(a)(1)[, and] October 16, 2015 was the forty-second day after the Pohnpei Supreme Court appellate division’s denial of the petition for rehearing." Edwin, 21 FSM R. at 135 & n.1. No extension of time to appeal was sought in the court appealed from.

Even if we have overlooked or misapprehended points of law or fact, we still cannot grant a petition for rehearing when it would not change the result. Berman v. Pohnpei, 17 FSM R. 464, 465 (App. 2011); Goya v. Ramp, 14 FSM R. 305, 307 (App. 2006). We would still lack jurisdiction because the notice of appeal was untimely.

Accordingly, for all the foregoing reasons, Edwin’s petition for rehearing is hereby denied.

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