Cite as AHPW, Inc. v. FSM,13 FSM Intrm. 36 (Pon. 2004)

[13 FSM Intrm. 36]

CIVIL ACTION NO. 1999-053

Decided: November 9, 2004

APPEARANCES:

HEADNOTES

Attorney, Trial Counselor and Client – Fees

When awarding attorney's fees, a court has broad discretion based on a standard of reasonableness in light of the case's circumstances. A fee application must be based on detailed supporting documentation showing the date, the work done, and the time spent on each service provided. The court must determine the amount of a reasonable fee and award no more than that. Where required, the court will reduce the amount of the award sought as opposed to denying the request altogether. The reasonableness determination is arrived at without referring to any fee agreement that may be in place between the parties. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 39 (Pon.

[13 FSM Intrm. 37]

2004).

Attorney, Trial Counselor and Client – Fees; Torts – Anticompetitive Practices

Any person who proves a violation of 32 F.S.M.C. 302 or 32 F.S.M.C. 303 may recover reasonable attorney's fees. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 39 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees; Torts – Damages

A court may award a plaintiff reasonable attorney's fees in litigating a statutory cause of action that provides for award of attorney's fees to the prevailing party even though the plaintiff obtains only nominal damages. The fact that only nominal damages are awarded however may be considered in determining the amount of the attorney's fees. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 39-40 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees; Torts – Damages

When a statute provides for attorney's fees to the prevailing party, a plaintiff need not receive all of the relief that he seeks in order to be eligible for attorney's fees so long as he prevails on a significant issue. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 40 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees

A fee application must be supported by detailed supporting documentation showing the date, the work done, and the amount time spent on each service. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 40 (Pon. 2004).

Civil Procedure – Motions

Since there is no authority that a litigant may "reserve" an unspecified objection by stating that it is reserving its right to comment and object to an attorney's fees submission until such time that the appellate division has finally determined the appealed case including the propriety of the award of attorney's fees and costs, such a notice of reservation is deemed a waiver of any objection to counsel's amended attorney's fee statement. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 40 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees

In Micronesia, an attorney's fee of $120 an hour has been found to be reasonable where there have been other fee awards of that amount and the attorney's work was of high quality, the case was a difficult one, and novel issues were presented. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 41 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees

When the court is unaware of any FSM case in which a fee of greater than $120 an hour was awarded and no authority has been provided to support the contention that in the current economic climate of the FSM, an attorney's fee of more than twice the hourly rate previously recognized as reasonable may be found to be reasonable, the fee award will be reduced to $120 an hour. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 41 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees; Commerce

When the lack of details provided in an attorney's fee affidavit is problematic, but Congress felt that the policy concerns underlying 32 F.S.M.C. 301 et seq. were strong, because a successful plaintiff may recover both reasonable attorney's fees and treble damages and the plaintiff has successfully vindicated an interest protected by this statute and when the case presented complex, novel issues and the relief sought was ultimately achieved, in lieu of denying a fee request altogether, the court may reduce the amount of the fee claimed. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 41 (Pon. 2004).

[13 FSM Intrm. 38]

Costs

Costs that have been awarded in the FSM include service costs, transcript and copying costs when they represent payment to others for services, and reasonable travel expenses when there is a showing of no attorney available on the island where the litigation is taking place. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 42 (Pon. 2004).

Costs

When insufficient information has been provided concerning the costs set out in an affidavit to enable the court to make an award of costs, none of these costs will be awarded. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 42 (Pon. 2004).

Attorney, Trial Counselor and Client – Fees

An hourly fee of $75 is reasonable and is well within the limits that have been recognized in the FSM. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 43 (Pon. 2004).

Costs

When an affidavit sets out costs totaling $1,605.15, but no description is provided for the individual amounts beyond the notation "direct expense," the court can make no determination whether these expenses constitute awardable costs and none will be awarded. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 43 (Pon. 2004).

Appellate Review – Stay

An application for a stay of the judgment or order of the court appealed from pending appeal must ordinarily be made in the first instance in the court appealed from. Thus the trial court retains jurisdiction over the case for deciding a motion to stay. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 43 (Pon. 2004).

Statutes – Construction

An otherwise valid national statute must control over a state statute. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 43 (Pon. 2004).

Appellate Review – Stay

When the case is one of public importance involving a novel issue of law, the court will consider four factors in determining whether to grant a stay pending appeal: 1) whether a strong showing has been made of the likelihood that the appellant will be successful on appeal; 2) whether irreparable injury to the appellant will result in the absence of a stay; 3) whether other interested parties would be harmed by the stay; and 4) whether staying the judgment on appeal would serve the public interest. In the usual case the first factor is the most important, but a stay is also appropriate in a substantial case when the equities reflected in the remaining factors weigh heavily in favor of granting the stay. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 43 (Pon. 2004).

Appellate Review – Briefs and Record

Regardless of whether a party who filed a notice of appeal is designated an appellant or cross-appellant, each appellant must discharge the duties imposed by Appellate Rule 10(b) and take any other action necessary to enable the clerk to assemble and transmit the record. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 44 n.1 (Pon. 2004).

Appellate Review – Notice of Appeal

A second notice of appeal adds nothing to an initial notice of appeal, when it purports to appeal the an earlier non-final – and hence nonappealable – order as well as the already appealed final judgment and is therefore nugatory. AHPW, Inc. v. FSM, 13 FSM Intrm. 36, 44 (Pon. 2004).

[13 FSM Intrm. 39]

COURT'S OPINION

MARTIN YINUG, Associate Justice:

On August 17, 2004, plaintiff AHPW, Inc. ("AHPW") filed affidavits of both its counsel, Douglas F. Cushnie and Martin F. Mix, in support of its request for fees and costs. The August 17, 2004, submission was in response to the prior order of July 29, 2004, which found that AHPW's initial request for fees and costs did not comply with Jackson v. George, 10 FSM Intrm. 523, 527 (Kos. S. Ct. Tr. 2002). On August 18, 2004, the state of Pohnpei filed what it styles a "notice" in which it purports to reserve any unstated objections that it may have to AHPW's fee claim for presentation to the appellate division. On August 31, 2004, Pohnpei filed its motion to stay proceedings pending the appeal of this matter. AHPW did not respond. Also on August 31, 2004, AHPW filed a motion that seeks clarification of the notices of appeal, and also apparently asks that this court specify how appeal papers will be filed before the appellate division. No response was filed to this last motion.

For the reasons set forth below, AHPW is awarded attorney's fees of $28,338.76, which represents $18,072.00 for the services of Douglas F. Cushnie and $10,266.76 for the services of Martin F. Mix. AHPW's request for costs is denied. Pohnpei's motion to stay the judgment pending appeal is granted. No bond is required. AHPW's motion for clarification is granted. AHPW's motion for leave to file papers by fax in the appellate division, filed on August 31, 2004, is denied.

A. AHPW'S REQUEST FOR ATTORNEY'S FEES AND COSTS

When awarding attorney's fees, a court has broad discretion based on a standard of reasonableness in light of the case's circumstances. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 673 (App. 1996). A fee application must be based on detailed supporting documentation showing the date, the work done, and the time spent on each service provided. Jackson, 10 FSM Intrm. at 527. The court must determine the amount of a reasonable fee and award no more than that. Udot Municipality v. FSM, 10 FSM Intrm. 498, 500 (Chk. 2002). Where required, the court will reduce the amount of the award sought as opposed to denying the request altogether. Id. The reasonableness determination is arrived at without referring to any fee agreement that may be in place between the parties. FSM Dev. Bank v. Kaminanga, 12 FSM Intrm. 454, 455 (Chk. 2004).

AHPW seeks the fees that it incurred in litigating this case under 32 F.S.M.C. 301 et seq., since § 306 of that title provides that any person who proves a violation of § 302 or § 303 may recover reasonable attorney's fees. This matter involves two different sets of facts, those concerning Pohnpei's conduct involving AHPW's pepper processing business, and those concerning Pohnpei's action with regard to AHPW's trochus shell button manufacturing business. With respect to the pepper business, AHPW prevailed and obtained a substantial judgment of more than $600,000 (this amount reflects the treble damages provided for under § 306(2)). With regard to the trochus shell button business, AHPW prevailed on its claim of a statutory violation under § 302(2), but obtained only nominal damages because it could not demonstrate a causal link between the statutory violation and damages to its business. Also, AHPW also brought expropriation claims against both Pohnpei and the FSM under 32 F.S.M.C. 216 for damage to both businesses, but those claims were dismissed. The question is the extent to which attorney's fees under § 306 are awardable under these circumstances.

A court may award a plaintiff reasonable attorney's fees in litigating a statutory cause of action that provides for award of attorney's fees to the prevailing party even though the plaintiff obtains only nominal damages. Burt v. Abel, 585 F.2d 613, 618 (4th Cir. 1978) (holding that the fact plaintiff could

[13 FSM Intrm. 40]

recover only nominal damages after having prevailed on the merits under the U.S. federal civil rights statute "in no way diminished [plaintiff's] eligibility for attorney's fees" under the federal statute). The fact that only nominal damages are awarded however may be considered in determining the amount of the attorney's fees. Id. Thus the fact that AHPW recovered only nominal damages on its claims for damage to its trochus shell button business does not preclude it from obtaining an award of attorney's fees, although this is a factor the court considers in determining the amount. Further, the fact that AHPW's claims under 32 F.S.M.C. 216 were dismissed does not obviate fee eligibility. Where a statute provides for attorney's fees to the prevailing party, a plaintiff need not receive all of the relief that he seeks in order to be eligible for attorney's fees so long as he prevails on a significant issue. Espinoza v. Hillwood Sq. Mut. Ass'n, 532 F. Supp. 440 (E.D. Va. 1982) (holding that plaintiffs were prevailing parties under the U.S. federal civil rights statute although the plaintiffs had dropped their claims under another U.S. federal statute, the Fair Housing Act, 42 U.S.C. §§ 3601-3619); see also Estate of Mori v. Chuuk, 10 FSM Intrm. 123, 124 (Chk. 2001) (holding that under the FSM civil rights statute, 11 F.S.M.C. 701 et seq., the court may award the full amount of the plaintiff's reasonable attorney's fee even though only a portion of the plaintiff's recovery is based on the civil rights claim so long as all of the claims are based on a common nucleus of operative fact).

AHPW engaged Douglas F. Cushnie from Saipan and Martin F. Mix of Pohnpei to perform legal services on its behalf in this action. Both are admitted to practice before the FSM Supreme Court. On July 23, 2004, AHPW filed it's Submission of Amended Statement of Attorneys' Fees. It was styled "Amended" because AHPW had requested and received time to file a more legible listing of the claimed fees and costs. The amended submission also decreases the amount of fees sought for Cushnie's services due to a billing error. The only documentation that supports this submission are copies of what appear to be two ledger entries showing the amount of fees billed and the billing date, and as previously noted this fails to meet the specificity requirements for a fee application required under Jackson v. George, 10 FSM Intrm. at 527, which provides that a fee application must be supported by detailed supporting documentation showing the date, the work done, and the amount time spent on each service. Pohnpei filed no response to this submission. By order of July 29, 2004, the court directed counsel to file an application in compliance with George, and the second amended submission was filed on August 17, 2004. Attached to this are the two affidavits, one from Cushnie, and one from Mix. Cushnie's affidavit shows fees and costs of $134,537.90 (fees of $100,472.50 and costs of $34,065.40) while Mix's affidavit claims a total of $12,424.56 (fees of $11,407.51 and costs of $1,605.15). In lieu of a substantive response to the August 17, 2004, amended fee statement, Pohnpei on August 18, 2004, filed its Notice of Reservation of Rights to File Comments On and Objections to Plaintiff's Submission of Attorney's Fees and Costs, which purports to assert that Pohnpei "is reserving its right to comment and object to AHPW's [attorney's fees] submission until such time that the appellate division shall have finally determined the appealed case including the propriety of the award of attorney's [sic] and costs." Notice [] at 2 (Aug. 18, 2004). No authority is cited for the proposition that a litigant may "reserve" an unspecified objection in this manner and then present it to the appellate court after it has finally determined the propriety of the award in the first instance. Pohnpei's August 18, 2004 notice of reservation is deemed a waiver of any objection to AHPW's counsel's amended attorney's fee statement.

As noted, AHPW's August 17, 1004, amended fee statement is supported by two separate affidavits, one by Cushnie and one by Mix. The court considers each in turn.

1. Cushnie's affidavit

In his affidavit attached to the August 17, 2004, amended fee statement, Cushnie shows $100,472.50 in fees and $34,065.40 in costs. Attached to the affidavit are thirteen pages containing on the order of 200 individual entries. The first page contains the headings "DATE," "PROFESSIONAL

[13 FSM Intrm. 41]

SERVICES RENDERED," "TIME," and "AMOUNT." Typical examples of the entries, one from each year, are as follows:

These entries provide only nominal compliance with George. The description of the work done is summary in the extreme, and as a comparison of the February 6, 2001, and February 14, 2002, entries shows, more or less the same amount of descriptive detail is provided for a $75.00 charge as for the two charges of $1,750.00 and the one for $2,000.00. Descriptive notations as brief as these to support charges of the magnitude indicated provide little assistance to the court in determining whether the individual entries reflect reasonable billing, and hence a reasonable fee. This is especially the case here, where AHPW brought different statutory claims based on two entirely different sets of facts, those involving trochus and those involving pepper. No effort was made to categorize the work done according to the facts or claims involved.

Cushnie's affidavit does not specifically state his hourly fee – this information is only to be obtained by looking to billing entries and dividing the various dollar amounts billed by the corresponding number of hours. That fee is $250 per hour. In Micronesia, an attorney's fee of $120 an hour has been found to be reasonable where there have been other fee awards of that amount and the attorney's work was of high quality, the case was a difficult one, and novel issues were presented. Udot Municipality v. FSM, 10 FSM Intrm. 498, 500 (Chk. 2002). The court is aware of no FSM case in which a fee of greater than $120 an hour was awarded. Cushnie has provided no authority to support the contention that in the current economic climate of the FSM, an attorney's fee of more than twice the hourly rate previously recognized as reasonable may be found to be reasonable.

As previously noted, when awarding attorney's fees to the prevailing party, a court has broad discretion based on a standard of reasonableness in light of the case's circumstances. Senda, 7 FSM Intrm. at 673. The lack of details provided in Cushnie's affidavit is problematic. On the other hand, Congress felt that the policy concerns underlying 32 F.S.M.C. 301 et seq. were strong, because in addition to providing that a successful plaintiff may recover reasonable attorney's fees, § 306(2) provides for treble damages recovery by a successful plaintiff. AHPW has successfully vindicated an interest protected by this statute undergirded by strong policy considerations, and this is a factor that the court considers in weighing the shortcomings evident in Cushnie's fee affidavit. Further, this case presented complex, novel issues and the relief sought was ultimately achieved. Udot, 10 FSM Intrm. at 500. In lieu of denying a fee request altogether, the court may reduce the amount of the fee claimed. Id. The court exercises its broad discretion to reduce Cushnie's fees in the following way.

Cushnie seeks fees of $100,472.50. Dividing this sum by Cushnie's hourly rate of $250 an hour results in a total of 401.89, or 401.9, hours. The court will allocate half of those hours to the pepper claims, upon which AHPW prevailed, and half to the trochus claims, upon which AHPW prevailed but was awarded only nominal damages. Half of 401.9 is 200.95, or 200.9. Thus the court allots 200.9

[13 FSM Intrm. 42]

hours to each of the two different types of claims. Although there are substantial deficiencies in Cushnie's affidavit, what is in the affidavit, as opposed to what is missing, speaks for itself. At a minimum, and considering all the facts and circumstances of this case, including the fact that the fees were incurred over a period of years in litigation involving complex issues, the affidavit supports awarding half of the 200.9 hours, or 100.4 hours, as a minimal reasonable fee for litigating the pepper claims. A larger fee may well have been reasonable had the fee request been substantiated by a fee affidavit in compliance with George, but it was not. The foregoing considerations hold for the trochus claims as well. However, the court will further reduce the hours allotted to these claims by fifty percent to account for the fact that AHPW obtained only nominal damages on the trochus claims. The court will award 50.2 hours on the trochus claims. Thus, the total attorney's fee awarded to AHPW based on the services provided by Cushnie is $18,072.00, or 150.6 hours at $120 an hour.

Cushnie's affidavits also sets forth substantial costs of $34,065.40, which reflects 36 line item listings. A single item, described only as "George Kim's fee" accounts for $15,600.00 of this sum. George Kim is a certified public accountant who testified at trial on the question of AHPW's damages. "George Kim's fee" is also the descriptive notation offered for sums of $2,925.00 and $1,200.00, respectively dated August 30, 2002, and October 30, 2002. Thirteen of the listings, totaling $9,842.60, are for air fares. Only two of these notations bear any indication of the destination for the travel, and only two indicate any purpose for the travel. The listings for payment to the clerk of court show only the amount, and not the reason for incurring the costs. Copying costs total $468.00, but the listings show only total amounts. The cost per page is not indicated, and the court cannot determine whether the charges are reasonable.

Costs that have been awarded in the FSM include service costs, transcript and copying costs when they represent payment to others for services, and reasonable travel expenses when there is a showing of no attorney available on the island where the litigation is taking place. Udot, 10 FSM Intrm. at 501. Insufficient information has been provided concerning the costs set out in Cushnie's affidavit to enable the court to make an award of costs. AHPW is awarded none of these costs.

2. Mix's affidavit

AHPW also seeks the attorney's fees that it incurred for the services of Martin F. Mix. The fees set out in Mix's affidavit supporting this request are $11,407.51. The affidavit also shows costs in the amount of $1,605.15. Attached to the affidavit is a listing of the amounts billed. There are in the neighborhood of 200 entries dated over a period of five years. Examples of the listings, one from each year, are as follows:

Mix's listing of services rendered shares some of the defects of Cushnie's, in that it makes no indication of whether the services performed related to the trochus claims or to the pepper claims. Mix does not state his hourly rate, and this can be determined only from extrapolating backward by dividing the total amount billed for any one month by the hours billed. Also, more information could have been provided,

[13 FSM Intrm. 43]

but on the other hand many of the individual listings are for less than an hour, and services requiring small amounts of time obviously need less description. On this point, of the more than 200 individual billings listed by Mix, only 12 are for 2 hours or more, whereas in Cushnie's case, 67 are for 2 hours or more. Only 3 of Mix's more than 200 listings are 4 hours or more, while 38 of Cushnie's are 4 hours or greater.

The lack of detail in the billing entries is of substantially less concern in Mix's case than it is in Cushnie's. Nevertheless, it is a concern, and the court will take this into account by exercising its broad discretion under Senda to make a 10 percent reduction in the amount AHPW requests for Mix's services from $11,407.51 to $10,266.76. The court also finds that Mix's hourly fee of $75 is reasonable. It is well within the limits that have been recognized in the FSM. Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987) (recognizing a $100 hourly rate as reasonable in Kosrae); Udot, 10 FSM Intrm. at 500 (recognizing $120 as reasonable rate in Chuuk); Bank of Guam v. O'Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999) (recognizing a $110 hourly rate as reasonable in Chuuk). Thus, AHPW is awarded fees in the amount of $11,407.51 for Mix's services. The court finds this to be a reasonable fee under all the facts and circumstances of this case.

Mix's affidavit also sets out costs totaling $1,605.15. No description is provided for the individual amounts beyond the notation "direct expense." The court can make no determination whether these expenses constitute awardable costs. None are awarded.

In sum, AHPW is awarded attorney's fees of $28,338.76 ($18,072.00 for services rendered by Cushnie, and $10,266.76 for services by Mix). No costs are awarded to AHPW. A separate award of fees issues herewith.

B. POHNPEI'S MOTION FOR STAY PENDING APPEAL

Rule 8(a) of the FSM Rules of Appellate Procedure provides that "[a]pplication for a stay of the judgment or order of the court appealed from pending appeal . . . must ordinarily be made in the first instance in the court appealed from." Thus this court retains jurisdiction over this case for deciding this motion. Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 198-99 (Chk. 1999). Pohnpei has moved for a stay of the judgment, urging two bases for staying proceedings on appeal. First, it asserts that a Pohnpei state statute, Pon. S.L. No. 1L-85-86, precludes Pohnpei from being designated a person under 32 F.S.M.C. 302(2) and (3). Under the Supremacy Clause of the FSM Constitution, a national statute must control over a conflicting provision of a state constitution. Louis v. Kutta, 8 FSM Intrm. 208, 213 (Chk. 1997). Similarly, an otherwise valid national statute must control over a state statute. Thus, 32 F.S.M.C. 302(2) and (3) controls over any conflicting Pohnpei state statute. Accordingly Pohnpei's contention that Pohnpei state law precludes it from being designated a person for purposes of the national statute is without merit. The court will not entertain staying the judgment on this basis.

However, Pohnpei urges a second basis for staying the judgment pending appeal, and contends that this case is one of public importance involving a novel issue of law. The court agrees. The court will consider four factors in determining whether to grant a stay pending appeal: 1) whether a strong showing has been made of the likelihood that the appellant will be successful on appeal; 2) whether irreparable injury to the appellant will result in the absence of a stay; 3) whether other interested parties would be harmed by the stay; and 4) whether staying the judgment on appeal would serve the public interest. Department of Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000). In the usual case the first factor is the most important, but a stay is also appropriate in a substantial case when the equities reflected in the remaining factors weigh heavily in favor of granting the stay. Id. Here, Pohnpei has made no showing that it will be successful on appeal. Nor has there been a showing that Pohnpei would be irreparably harmed in the absence of a stay. Thus these two factors weigh

[13 FSM Intrm. 44]

against a stay. However, factors three and four favor a stay. There is no showing that issuance of a stay would harm third parties. The fourth factor is the most persuasive. This case is a substantial one involving issues of first impression under a statute that provides for an award of treble damages for violation of the statute. A large judgment – more than $600,000 – was entered against Pohnpei, and a judgment of this size against one of the states of the FSM implicates the public interest in a fundamental way. Accordingly, Pohnpei's motion for a stay is granted. No bond is required.

C. AHPW'S MOTION RELATING TO PROCEEDINGS BEFORE THE APPELLATE DIVISION

On August 31, 2004, AHPW filed a submission containing two separate titles in the right-hand portion of the caption, "Clarification of Filings of Notices of Appeal" and "Motion to Allow Filing of Pleadings Sent via Facsimile." The clarification is a motion, since it seeks relief, namely to have all three of AHPW's notices of appeal¹ treated as one, with any time periods to be computed from the date of the filing of the first notice of appeal, which is August 16, 2004. AHPW's first notice of appeal appeals the judgment entered on July 8, 2004. Its second notice of appeal adds nothing to its initial notice of appeal, since it purports to appeal the non-final – and hence nonappealable – October 10, 2003, order as well as the already appealed judgment entered on July 8, 2004. FSM Civ. R. 54(b) (order not final which "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties). The third notice of appeal (styled the second amended notice of appeal) was filed on August 30, 2004. Like the second notice, it contains an extraneous reference to another non-final order, that of September 29, 2003. However, the relevant consideration is that it appeals the August 27, 2004, judgment, which disposes of the issues determined by both the September 29, 2003, and October 10, 2003, orders. The August 30, 2004, notice of appeal was timely under FSM Appellate Rule 4(a)(1), since it was filed three days after entry of the judgment appealed from.

The upshot of all of this is that AHPW's motion to consolidate the notices of appeal does not seek to consolidate the notices of appeal by moving the date for their filing forward so that consolidation date would be more than 42 days from the date of filing of either its first or third notice of appeal, the second notice being nugatory. Rather, AHPW seeks to move the date for the third notice backward to the filing of the first notice of appeal to August 16, 2004, from August 30, 2004. Thus none of the concerns that might be implicated under FSM Appellate Rule 4(a)(5), which addresses a motion in the court appealed from to extend time for the filing of a notice of appeal, applies. Accordingly, the motion is granted. August 16, 2004, will serve as the consolidated date for AHPW's notices of appeal.

AHPW's motion to file pleadings by fax also apparently seeks leave of this court to file papers in the appellate division. AHPW should apply to the appellate division for such an order. The motion is denied.

¹ This case presents an instance of an appeal and a cross-appeal, since both parties have filed notices of appeal. AHPW filed its initial notice of appeal on the same date, August 16, 2004, as Pohnpei filed its sole notice of appeal. The question that arises, and which will be for the appellate clerk to decide, is which of the parties is the appellant/cross-appellee, and which is the appellee/cross-appellant. Regardless of the designation, "[e]ach appellant must discharge the duties imposed by Appellate Rule 10(b) and take any other action necessary to enable the clerk to assemble and transmit the record." 20 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 311.11[1] (3d ed. 1999).