Cite as Goya v. Ramp, 14 FSM Intrm. 305 (App. 2006)

[14 FSM Intrm. 305]

APPEAL CASE NO. P6-2003

ORDER DENYING REHEARING PETITION

Decided: July 18, 2006

BEFORE:

Hon. Dennis Yamase, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Specially Assigned Justice, FSM Supreme Court*
Hon. Yosiwo P. George, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Chief Justice, Kosrae State Court, Lelu, Kosrae

HEADNOTES

Appellate Review – Rehearing

After carefully considering a petition for rehearing and the arguments therein, the court may deny the petition and order the mandate to issue. Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given. Goya v. Ramp, 14 FSM Intrm. 305, 307

(App. 2006).

Appellate Review – Rehearing

Since a party has fourteen days to petition for a rehearing, when an appellate opinion and judgment was entered on January 13, 2005, a rehearing petition should therefore be filed no later than January 27, 2005 or an enlargement of time requested. When the petition was filed February 2, 2005 and no enlargement of time was sought, the petition was untimely filed and could be denied on that ground alone. Goya v. Ramp, 14 FSM Intrm. 305, 307 (App. 2006).

Appellate Review – Rehearing

Appellate courts do have the power to enlarge the time to petition for rehearing and to modify an erroneous decision even though the time for rehearing has expired. Goya v. Ramp, 14 FSM Intrm. 305, 307 (App. 2006).

Appellate Review – Standard of Review

Appellate courts do not make factual findings. Goya v. Ramp, 14 FSM Intrm. 305, 307 n.1 (App. 2006).

Appellate Review – Rehearing

Rehearing will be denied when even if the court misapprehended a certain fact, the result in the case would not change. Goya v. Ramp, 14 FSM Intrm. 305, 307 (App. 2006).

Appellate Review – Rehearing

When the appellant raises no argument that the court has not already considered and rejected, the court will conclude that it has not overlooked or misapprehended a point of law and rehearing will be denied. Goya v. Ramp, 14 FSM Intrm. 305, 308 (App. 2006).

Courts – Recusal; Mandamus and Prohibition

When a party has filed a writ of prohibition directed to disqualify one appellate justice, the remaining members of the appellate panel may deny that petition if it clearly should not be granted. Goya v. Ramp, 14 FSM Intrm. 305, 308 n.2 (App. 2006).

Courts – Recusal

Since the FSM disqualification statute requires that a motion to disqualify a justice be filed before the trial or hearing unless good cause is shown for filing it at a later time, when good cause was not shown for filing a disqualification motion four months after the hearing for which the movant now seeks a justice's disqualification, it will be denied as untimely. Goya v. Ramp, 14 FSM Intrm. 305, 308 (App. 2006).

Courts – Recusal

For the purpose of a recusal motion, a temporary justice is considered an FSM justice to which 4 F.S.M.C. 124 applies. Goya v. Ramp, 14 FSM Intrm. 305, 308 n.3 (App. 2006).

Courts – Recusal

An "incident" involving a justice's exclusion of counsel from a chambers conference in a Pohnpei Supreme Court case where counsel was trying to appear to represent a different client is inadequate to, and cannot, show personal bias toward counsel by that justice because typically, only the judge and court personnel, the parties, and their counsel are permitted to attend a chambers conference and since counsel is not admitted to practice before the Pohnpei Supreme Court and her motion to appear pro hac vice in that case had not been granted, her exclusion from that chambers conference is not a ground to disqualify the justice. Goya v. Ramp, 14 FSM Intrm. 305, 308 (App. 2006).

Attorney and Client – Admission to Practice

The filing of a motion to appear pro hac vice does not automatically entitle the applicant to appear. Goya v. Ramp, 14 FSM Intrm. 305, 308 n.4 (App. 2006).

COURT'S OPINION

PER CURIAM:

Our opinion and the judgment in this appeal was issued January 13, 2005. The appellant, Erine Yoma (Ramp) Goya, filed her petition for rehearing on February 2, 2005. She raises three grounds for granting the rehearing: 1) she asserts that we overlooked the fact that the appellant, Erine Yoma (Ramp) Goya, asked her counsel to represent her on August 8, 2003 (and not on July 16 or 17, 2003 as she believes we erroneously presume); 2) that our interpretation of Civil Procedure Rule 5(e) was contrary not only to that rule but to other court rules; and 3) that Specially Assigned Justice Judah C. Johnny (Chief Justice, Pohnpei Supreme Court) should have recused himself.

After carefully considering a petition for rehearing and the arguments therein, the court may deny the petition and order the mandate to issue. Panuelo v. Amayo, 12 FSM Intrm. 475, 476 (App. 2004). Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 482 (App. 1996). This is one of those occasions. The petition is denied. Our reasons follow.

First, the petition was untimely filed. It could be denied on that ground alone. Our opinion and judgment was entered on January 13, 2005. A party has fourteen days "after entry of judgment" to petition for a rehearing unless the time is lengthened or shortened by court order. FSM App. R. 40(a). The petition should therefore have been filed no later than January 27, 2005 or an enlargement of time requested. The petition was filed February 2, 2005 and no enlargement of time to file it was sought. Appellate courts do, however, have the power to enlarge the time to petition for rehearing and to modify an erroneous decision even though the time for rehearing has expired. Nena v. Kosrae (III), 6 FSM Intrm. 564, 567-68 (App. 1994).

We therefore enlarge the time for this petition, although we may not be so inclined for future petitions.

Goya asserts that we overlooked or misapprehended¹ a point of fact in our opinion – that her counsel did not call her from the U.S. on July 16 or 17, 2003, but that counsel wrote to her from the U.S. on that date informing her of the trial court result and telling her to contact Micronesian Legal Services Corporation if she wanted to appeal. Even if we misapprehended the nature of the contact on July 16 or 17, 2003, the result in this case would not change. The salient fact remains that Goya’s counsel made no effort of any kind to file a notice of appeal or to seek an extension of the time to appeal until the very last day (September 10, 2003) of the thirty-day period during which an extension of the time to appeal may be sought. The excuses given for neglecting to do something to get a notice of appeal filed before September 10, 2003 ring hollow.

Goya further asserts that we overlooked or misapprehended a point of law when we ruled that she could have made a request by fax to file a notice of appeal by facsimile transmission as one of many ways a notice of appeal might be filed in a more timely manner. She raises no argument that we have not already considered and rejected. We conclude that we have not overlooked or misapprehended a point of law.

Lastly, Goya asserts that specially assigned (temporary) justice, Judah Johnny, should have disqualified himself from the panel and that his participation in our January 13, 2005 opinion makes that decision void or voidable.² Goya bases this contention on two alleged incidents involving Justice Johnny and her counsel. The first occurred sometime in 2002. Justice Johnny was appointed to this panel in January, 2004. Goya did not raise this alleged ground for disqualification when notified of the panel’s composition, or when her opening brief was filed, or at the August 11, 2004 oral argument. She only raises it now after an unfavorable decision and judgment were entered.

We conclude, that this ground was not timely raised. The FSM disqualification statute³ requires that a motion to disqualify a justice "shall be filed before the trial or hearing unless good cause is shown for filing it at a later time." 4 F.S.M.C. 124(6). Good cause was not shown for filing a disqualification motion four months after the hearing (the August 11, 2004 oral argument) for which Goya now seeks Justice Judah Johnny's disqualification.

The second "incident" involved Justice Johnny's exclusion of Goya's counsel from a chambers conference in a Pohnpei Supreme Court case where Goya's counsel was trying to appear to represent a different client. Typically, only the judge and court personnel, the parties, and their counsel are permitted to attend a chambers conference. Since Goya's counsel is not admitted to practice before the Pohnpei Supreme Court and her motion to appear pro hac vice⁴ in that case had not been granted, her exclusion from that chambers conference is inadequate to, and cannot, show personal bias toward her by Justice Johnny.

Accordingly, the rehearing petition is denied.  Let the mandate issue.  FSM App. R. 41.

¹ Actually she asserts that we made an erroneous factual finding. Generally, appellate courts do not make factual findings. We took the facts as Goya asserted them to be and made conclusions of law based on those asserted facts.

² Goya filed, along with the rehearing petition, a petition addressed to Justice Judah Johnny asking that he disqualify himself. Justice Johnny denied that petition by order entered June 13, 2006. She then filed a writ of prohibition directed to Justice Johnny. By an order already entered [Goya v. Ramp, 14 FSM Intrm. 303 (App. 2006)], the remaining members of the appellate panel denied that petition on the ground that it clearly should not be granted. FSM App. R. 21(b). To the extent that those reasons apply to the petition for rehearing as well as the petition for a writ of prohibition, we repeat them here.

³ For the purpose of this appeal, Justice Judah Johnny is considered an FSM justice to which 4 F.S.M.C. 124 applies.

⁴ The filing of a motion to appear pro hac vice does not automatically entitle the applicant to appear.