Carl v FSM Development Bank [2017] FMSC 34; 21 FSM R. 342 (App. 2017) (13 September 2017)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P2-2017

LINDA CARL, )
)
Appellant, )
)
vs. )
)
FSM DEVELOPMENT BANK, )
)
Appellee. )
__________________________________________ )

ORDER TO CURE DEFECT IN LIEU OF DISMISSAL

Larry Wentworth
Associate Justice

Decided: September 13, 2017

APPEARANCES:

For the Appellant: Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Appellee: Nora E. Sigrah, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review Briefs, Record, and Oral Argument; Appellate Review Dismissal
An appellant must timely file a request for a transcript or a statement of the issues, a designation of the appendix, and an opening brief with an appendix. An appellant’s failure to comply with these rules may subject its appeal to dismissal. Carl v. FSM Dev. Bank, 21 FSM R. 342, 343 (App. 2017).

Appellate Review Dismissal
Although Appellate Rule 3(a) does authorize dismissal in the court’s exercise of sound discretion, an appeal’s dismissal for failure to comply with procedural rules is generally not favored. Carl v. FSM Dev. Bank, 21 FSM R. 342, 343 (App. 2017).

Appellate Review Dismissal
The court’s discretion to dismiss an appeal should be sparingly used unless the party who suffers it has had an opportunity to cure the defect and failed to do so. Before dismissing an appeal, a court should consider and weigh such factors as whether the defaulting party’s action is willful or merely inadvertent, whether a lesser sanction can bring about compliance, and the degree of prejudice the opposing party has suffered because of the defect. Carl v. FSM Dev. Bank, 21 FSM R. 342, 343-44 (App. 2017).

Appellate Review Dismissal
When, at an appeal’s early stage, any prejudice to the appellees from the failure to either file a statement of issues or to order a full transcript is minor; when the appellants have not yet been given an opportunity to cure their defective performance; and since the court is generally quite reluctant to dismiss an appeal for failure to comply with the procedural rules when that failure may be the result of mere inadvertence, the appeal will not be dismissed until the appellants have been be given an opportunity to cure their defective performance by either filing and serving their statement of issues on appeal or by ordering a full transcript of the hearing(s) out of which the order appealed from arose. Carl v. FSM Dev. Bank, 21 FSM R. 342, 344 (App. 2017).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On June 26, 2017, appellee FSM Development Bank filed its Motion to Dismiss Appeal. It contends that the appellant’s failure to file and serve either a transcript request or a statement of issues within the time frame prescribed by Appellate Rule 10(b) warrants the dismissal of this appeal case. That rule provides:

(1) Within 10 days after filing the notice of appeal from a final judgment of a trial court, the appellant shall request from the reporter a transcript only of such parts of the proceedings not already on file as the appellant deems necessary. The request shall be in writing and within the same period the appellant shall file copies of the request with the clerk of the court appealed from and with the Chief Clerk of the FSM Supreme Court appellate division.

. . . .

(3) Unless the entire transcript is to be included, the appellant in an appeal from the decision of a trial court shall, within theays trovid (b)(1) of this Rule 10, file a statement of the issues the appellant iant intendntends to s to present on the appeal and shall serve the statement on the appellee together with a copy of the request for transcript. . .&#160>

As noted ined in Kitti Municipal Government v. Pohnpei, 11 FSM R. 622 (App. 2003):

An appellant must timely file a request for a tript, FSM App. R. 10(b)(1), or a statement of the issues, FSs, FSM App. R. 10(b)(3), a designation of the appendix, FSM App. R. 30(b), and an opening brief, FSM App. R. 12(b), 31(a), with an appendix, FSM App. R. 30(a). An appellant’s failure to comply with these rules may subject its appeal to dismissal. See FSM App. R. 3(a); 27(c); 31(c).

Kitti Mun. Gov’t, 11 FSM R. at 627. In this case, the appellant has, so far, failed to comply with only the first of their required obligations either file a written request for a complete transcript or file a statement of issues within ten days of their March 16, 2017 notice of appeal from a March 13, 2017 trial court post-judgment order and writ of garnishment.

Although Appellate Rule 3(a) does authorize dismissal in the court’s exercise of sound discretion, an appeal’s dismissal for failure to comply with procedural rules is generally not favored. Damarlane v. Pohnpei Legislature, 15 FSM R. 301, 308 (App. 2007). The court’s discretion to dismiss should be sparingly used unless the party who suffers it has had an opportunity to cure the defect and failed to do so. Id. Before dismissing an appeal, a court should consider and weigh such factors as whether the defaulting party’s action is willful or merely inadvertent, whether a lesser sanction can bring about compliance and the degree of prejudice the opposing party has suffered because of the defect. Id.

At this early stage, any prejudice to the appellee from the failure to either file a statement of issues or to order a full transcript is minor. The appellant has not yet been given an opportunity to cure this defect in their performance. Therefore, since the court is generally quite reluctant to dismiss an appeal for failure to comply with the procedural rules when that failure may be the result of mere inadvertence, the appellant will be given an opportunity to cure her defective performance.

Accordingly, the appellee’s motion to dismiss will not be granted UNLESS the appellant has not, by September 25, 2017, either filed and served her statement of issues on appeal or ordered a full transcript of the hearing(s) out of which the order appealed from arose.

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