Salomon v FSM Development Bank [2019] FMSC 30; 22 FSM R. 286 (App. 2019) (4 July 2019)

FSM SUPREME COURT APPELLATE DIVISION
APPEAL CASE NO. P4-2019

BERYSIN SALOMON and NANCY SALOMON,
Appellants,

vs.

FSM DEVELOPMENT BANK,
Appellee.
_____________________________________________

ORDER OF DISMISSAL

Decided: July 4, 2019

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Chang B. William, Specially Assigned Judge, FSM Supreme Court*
Hon. Mayceleen JD Anson, Specially Assigned Judge, FSM Supreme Court**

*Chief Justice, Kosrae State Court, Tofol, Kosrae
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

For the Appellants: 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 - Decisions Reviewable
The well-established general rule is that only final decisions may be appealed. Salomon v. FSM Dev. Bank, 22 FSM R. 286, 287 (App. 2019).

Appellate Review - Decisions Reviewable - Final Decision Defined
A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute judgment. Final orders and judgments are final decisions. Salomon v. FSM Dev. Bank, 22 FSM R. 286, 287 (App. 2019).

Appellate Review - Decisions Reviewable - Interlocutory
Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders will merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding if and when a final judgment or order results. Salomon v. FSM Dev. Bank, 22 FSM R. 286, 287-88 (App. 2019).

Appellate Review - Decisions Reviewable; Appellate Review - Decisions Reviewable - Interlocutory; Appellate Review - Dismissal
When the trial court’s order appealed from was not a final order or judgment, the appeal from that order will be dismissed for lack of jurisdiction as judicial economy dictates against piecemeal appeals and that the case below should be permitted to proceed to final judgment. Salomon v. FSM Dev. Bank, 22 FSM R. 286, 288 (App. 2019).

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COURT’S OPINION

PER CURIAM:

This is one of four appeals involving the same appellants and is related to one of two cases that were consolidated in the FSM Supreme Court Trial Division in Pohnpei, Civil Action No. 2014-021 (Salomon v. FSM Dev. Bank (Appeals No. P1-2019 and P4-2019)) and Civil Action No. 2014-023 (Salomon v. Mendiola et al. (Appeals No. P2-2019 and P5-2019)).

On December 19, 2018 the trial court issued an Order Dismissing Claims, Counterclaims and Parties in the consolidated case due to repeated discovery violations by appellants Berysin Salomon and Nancy Salomon. On January 22, 2019 the Salomons filed two separate appeals of this order under each case below, resulting in Appeals No. P1-2019 (from Civil Action No. 2014-021) and P2-2019 (from Civil Action No. 2014-023).

At the same time, in the consolidated case below, appellants filed a motion for the trial court to reconsider its December 19, 2018 order.

On February 6, 2019 the trial court denied appellants’ motion for reconsideration and ordered that the parties comply with certain discovery requests. [FSM Dev. Bank v. Salomon, 22 FSM R. 175 (Pon. 2019).] Appellants filed two separate appeals of that order on March 5, 2019: this Appeal No. P4-2019 (from Civil Action No. 2014-021) and Appeal No. P5-2019 (from Civil Action No. 2014-023).

On June 6, 2019, appellants filed a Motion to Stay Proceeding in Civil Action Nos. 2014-021 and 2014-023 Pending Appeal. This motion was filed in this Appeal No. P1-2019 and was opposed by FSMDB on June 11, 2019. In the consolidated cases below, the trial court judge set a hearing for June 11, 2019, then on June 7, 2019 granted an enlargement of time to appellants’ counsel and continued the hearing to July 30, 2019.

“The well-established general rule is that only final decisions may be appealed. A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute judgment. Final orders and judgments are final decisions.” Heirs of George v. Heirs of Tosie, 15 FSM R. 560, 562 (App. 2008) (citing Chuuk v. Davis, 9 FSM R. 471, 473 (App. 2000); In re Extradition of Jano, 6 FSM R. 23, 24 (App. 1993)).

Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders will merge. The purpose of limiting appeals to those from final decisions is to combine in one appellate review all stages of the proceeding if and when a final judgment or order results. This advances the policy of judicial economy which dictates against piecemeal appeals from the same civil action.

Heirs of George, 15 FSM R. at 562 (citing FSM Dev. Bank v. Adams, 12 FSM R. 456, 461 (App. 2004)); accord Damarlane v. United States, 8 FSM R. 14, 17 (App. 1997).

The appellants have previously appealed interlocutory court orders in the same cases. See Salomon v. Mendiola, 20 FSM R. 357 (App. 2016). In that opinion the appellate division addressed appellants’ September 4, 2015 Notice of Appeal, from an August 31, 2015 Order Partially Dismissing Claims, issued by the trial division in Civil Action No. 2014-023 (which had by then been consolidated with Civil Action No. 2014-021). The court stated:

The threshold determination of subject matter jurisdiction may be raised at any time by a party or the court. Nelson v. FSM Nat’l Election Dir., 16 FSM R. 414, 419 (App. 2009). Under FSM Appellate Rule 4(a), the appellate division can only entertain appeals from final decisions of the trial division. "The general rule is that appellate review of a trial court is limited to final orders and judgments. A policy of judicial economy dictates against piecemeal appeals." Santos v. Bank of Hawaii, 9 FSM R. 285, 287 (App. 1999).

Absent one of the limited exceptions to the final order or judgment rule of the appellate rules, in FSM Appellate Rule 4(a)(1)(B) through (E) applying, the appellate division does not have subject matter jurisdiction over an interlocutory appeal. "The FSM appellate division may hear appeals in civil cases from all final decisions of the FSM Supreme Court trial division and from interlocutory orders involving injunctions, receivers and receiverships, decrees determining parties’ rights and liabilities in admiralty cases and any other civil case in which an appeal is permitted by law. Permission may also be sought for an interlocutory appeal pursuant to Rule 5(a)." Chuuk v. Davis, 9 FSM R. 471, 473 (App. 2000). There is no indication, that an interlocutory appeal of the instant trial court order constitutes one of the aforementioned specific exclusionary matters permitted by the appellate rules.

[20 FSM R. at 360.]

Accordingly, in that case the appellate division dismissed the appeal on the basis that it lacked subject matter jurisdiction.

The trial court’s February 6, 2019 order appealed from in this case was not a final order or judgment in Civil Action No. 2014-021, and judicial economy dictates against piecemeal appeals. The appellate division lacks subject matter jurisdiction and the case below should be permitted to proceed to final judgment.

Because we lack jurisdiction to hear this appeal, it is accordingly ordered that this appeal is DISMISSED.

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