Cite as Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621 (Chk. S. Ct. App. 2007)

CIVIL APPEAL CASE NO. 04-2001

Hearing:  April 24, 2007

Decided:  April 30, 2007

Order Re-entered:  May 17, 2007

Hon. Dennis K. Yamase, Temporary Justice, Presiding*

Hon. Benjamin Rodriguez, Temporary Justice**

Hon. Repeat Samuel, Temporary Justice***

*Associate Justice, FSM Supreme Court, Weno Chuuk

**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

***Attorney at Law, Weno, Chuuk

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HEADNOTES

Appellate Review - Stay - Civil Cases

When a motion to stay the effect of the trial court judgment below was not filed in the court appealed from, as required by Appellate Procedure Rule 8(a), and when, only if the court appealed from denies the stay, or application to that court is not practicable, will the appellate division, on motion, consider a motion to stay, the appellate court will deny the motion to stay. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 624 (Chk. S. Ct. App. 2007).

Appellate Review - Stay - Civil Cases

When an appellant moved to stay the effect of the trial court judgment below and what the appellant sought to stay was the appellee State of Chuuk’s payment to another of installments of the purchase price for the land in question, the only potential harm would be to the appellee state if it paid money to buy land and ended up receiving nothing because it had not paid the true owner. Accordingly, the motion to stay will be denied. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 624 (Chk. S. Ct. App. 2007).

Appellate Review

The appellate rules provide that in the interest of expediting decisions, or for other good cause shown, the court may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of the appellate rules in a particular case on a party’s application or on its own motion and may order proceedings in accordance with its discretion. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 624 (Chk. S. Ct. App. 2007).

Costs

Any expenses actually incurred in copying needed documents in the record will ultimately be taxed as costs to be borne by the non-prevailing party(ies) once the court has rendered its appellate opinion. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 625 (Chk. S. Ct. App. 2007).

Appellate Review - Briefs and Record

Any appellee may move to strike any document in the appellant’s appendix on the ground that that document was not certified as part of the record on appeal. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 625 (Chk. S. Ct. App. 2007).

Appellate Review - Parties

Appellate Procedure Rule 43, governing the substitution of parties in appeals, relies on Civil Procedure Rule 25. Civil Rule 25 contemplates that a court of competent jurisdiction would confirm or appoint an administrator or personal representative of the deceased’s estate. Since the appellate division does not sit as a probate court of the first instance, the appellate court will not designate a representative of the estate or of the heirs. If a representative is later duly appointed, that representative will be listed as a party. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 625 (Chk. S. Ct. App. 2007).

Appellate Review - Dismissal

When an appellant filed its opening brief four years ago; and when the appellees would not stipulate to the record on appeal so the appellant, through its motion on the state of the record, sought relief to move things forward so that the appellees could prepare their briefs, the appellant has tried to prosecute the appeal and its appeal will not be dismissed on that ground. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 625 (Chk. S. Ct. App. 2007).

Appellate Review - Dismissal

When an appellee does not contend that the appeal from the trial division to the appellate division was untimely, or is not from a final judgment or order, or that it is a case under the exclusive jurisdiction of the national courts, but only contends that the trial division did not have the jurisdiction to grant the relief the appellant sought, the appellee’s motions to dismiss will be denied because the appellate court sits in review of the trial court decision, and a claim that the trial court does, or does not, have jurisdiction to grant the relief sought is an argument on the appeal’s merits and not a ground to dismiss because the appellate court lacks jurisdiction to review the trial court. The appellees may raise, if appropriate, any of the grounds they cited for dismissal, in their brief(s) on the merits. Enengeitaw Clan v. Shirai, 14 FSM Intrm. 621, 625 (Chk. S. Ct. App. 2007).

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COURT’S OPINION

PER CURIAM:

When this appeal came on for oral argument on April 24, 2007, the following motions and responses were also before the court: 1) appellee Shirai’s Motion to Dismiss, filed October 9, 2001; 2) appellant’s Opposition to Appellee’s Motion to Dismiss, filed October 17, 2001; 3) appellant’s Motion to Stay, filed April 11, 2003; 4) appellee Shirai’s Motion to Deny Appellant Motion to Stay, and to Dismiss the Appeal, filed April 28, 2003; 5) appellees’ Motion for Enlargement of Time, filed April 30, 2003; 6) appellant’s Motion to Determine Status of Records, filed June 2, 2003; 7) appellee Fuminory Shirai’s Reply to Appellant’s Motion to Determine Status of Records, filed June 10, 2003; 8) appellant’s counsel’s Motion to Withdraw, filed April 10, 2007; 9) appellant’s Motion for Enlargement of Time, filed April 10, 2007; 10) appellee Shirai’s Motion for Substitution of Party, filed April 23, 2007; and 11) appellee Shirai’s Motion to Dismiss, filed April 24, 2007.

I.

Appellant’s counsel of record, Salomon Saimon, moved to withdraw from the case on the ground that counsel is no longer in private practice but is a very busy Pohnpei Assistant Attorney General and that his client, the Enengeitaw Clan ("Clan"), has indicated its intent to discharge him. An accompanying motion asked that time be enlarged for oral argument and that, since the Clan’s opening brief had been filed (on April 28, 2003), all that new counsel, after becoming familiar with the case,

[14 FSM Intrm. 624]

would have to do would be to file a reply brief once the appellees had filed their briefs and to present oral argument. No opposition was filed to these motions.

We granted these motions from the bench. We indicated that we would give the Clan time to retain new counsel, counsel Francis Sain having appeared only for the purpose of representing the Clan at the April 24, 2007 hearing. Accordingly, new counsel for the Clan shall enter his or her appearance by May 8, 2007.

II.

The Clan moved to stay the effect of the trial court judgment below. The Clan did not file the motion to stay in the court appealed from, as required by Appellate Procedure Rule 8(a). Only if the court appealed from denies the stay or application to that court is not practicable, will the appellate division, on motion, consider a motion to stay. Furthermore, since what the Clan sought to stay was the appellee State of Chuuk’s payment of installments of the purchase price for the land in question in this case, the only potential harm would be to the appellee state if it paid money to buy land and ended up receiving nothing because it had not paid the true owner. Accordingly, the motion to stay is denied.

III.

The Clan, after it had filed its opening brief and appendix, moved to determine the status of the appellate record. The brief and appendix were prepared before the Clan’s counsel (and all other parties) received a copy of the certification of the record, although the record had been certified on November 11, 2002. ¹ The parties could, or would, not stipulate to the record on appeal. Appellee Fuminory Shirai insisted on strict compliance with Appellate Rule 12(c), which requires the clerk to duplicate the record with one copy for each party, with the cost to be initially borne by the appellant, unless the parties otherwise agree. Chk. App. R. 12(c). The appellate clerk noted that the Clan would thus be required to advance about $4,000 at the court’s then-current charge of $2.50 per page ² and inquired if the parties could come to some agreement. The Clan offered to provide the other parties copies of any documents in the certified record that were not included in the large (over 400 pages) appendix that it had already provided them. The offer was declined. Shirai further objected that the Clan’s appendix included documents that were not part of the certified record. The appellees jointly moved to enlarge the time to file their briefs until 30 days after they received their copies of the certified record. The Clan also moved that the appellees’ time to file briefs be enlarged.

The parties are thus at an impasse. Although the Clan’s opening brief was filed four years ago, no progress in readying the case for argument and decision on the merits has been made since then. The appellate rules provide that "[i]n the interest of expediting decisions, or for other good cause shown," we "may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on [our] own motion and may order proceedings in accordance with its discretion." Chk. App. R. 2. We consider the Clan’s motion to determine the state of the record to be such an application. We will therefore grant its application and

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resolve the Rule 12(c) obstacle as follows: 1) Rule 12(c) is suspended; 2) the appellate clerk will make the certified record available to the appellees for their inspection and to copy any document in the record that they need to prepare their briefs (or appendix); 3) any expenses actually incurred in copying needed documents will ultimately be taxed as costs to be borne by the non-prevailing party(ies) once the court has rendered its opinion; 4) any appellee may move to strike any document in the Clan’s appendix on the ground that that document was not certified as part of the record on appeal; 5) the appellees shall file and serve their answering briefs by June 1, 2007; and 6) any reply brief by the Clan shall be filed by June 11, 2007. It is expected that oral argument may then be held in mid-June.

IV.

Shirai also moves to substitute Mrs. Immaculata S. Ruda for Fuminory Shirai since Shirai has recently passed away. The motion asserts that Fuminory Shirai had appeared in this action as the representative of the children of Osame Shirai and that since Fuminory Shirai had passed away, Mrs. Ruda was the next in line under Chuukese custom to represent the heirs of Osame Shirai.

Appellate Procedure Rule 43, governing the substitution of parties in appeals, relies on Civil Procedure Rule 25. Civil Rule 25 contemplates that a court of competent jurisdiction would confirm or appoint an administrator or personal representative of the deceased’s estate. See Damarlane v. FSM, 8 FSM Intrm. 10, 12 (Pon. 1997) (construing the similar FSM Civil Rule 25). Since the appellate division does not sit as a probate court of the first instance, we will not designate a representative of the estate or heirs of Osame Shirai. Because it appears that Fuminory Shirai was, throughout this case, acting as a representative of the heirs of Osame Shirai and did not himself claim sole ownership of the land in question, we will substitute, in future captions, "Heirs of Osame Shirai" as parties-appellee in Fuminory Shirai’s stead. If a representative is later duly appointed, that representative will be listed as a party-appellee representing the heirs of Osame Shirai.

V.

Appellee Shirai has filed three separate motions to dismiss this appeal. All three motions contend that this court lacks jurisdiction over the case. The third motion also contends that the appeal should be dismissed for the Clan’s lack of prosecution of this appeal. The assertion that the Clan has failed to prosecute this appeal is based on Shirai’s contention that, as discussed above, the Clan was required to, and had not, provided the appellees with the certified record for four years. However, the Clan has tried to prosecute this appeal. It filed its opening brief four years ago; the appellees would not stipulate to the record on appeal; and the Clan sought relief, through its motion on the state of the record, to move things forward so that the appellees could prepare their briefs.

Shirai’s contentions that this court lacks jurisdiction over this case are all based on his contention that the trial division did, or does, not have jurisdiction to grant the relief the Clan seeks. Shirai does not contend that the Clan’s appeal from the trial division to the appellate division was untimely, or is not from a final judgment or order, or that this is a case under the exclusive jurisdiction of the national courts. He only contends, on grounds we need not elaborate here, that the trial division does not have the jurisdiction to grant the Clan relief and that therefore the Clan fails to state a claim.

Since we sit in review of the trial court decision, a claim that the trial court does, or does not, have jurisdiction to grant the relief sought is an argument on the appeal’s merits and not a ground for us to dismiss because the appellate court lacks jurisdiction to review the trial court. The three motions to dismiss are therefore denied. The appellees may raise, if appropriate, any of the grounds they cited for dismissal, in their brief(s) on the merits.

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VI.

In conclusion, Salomon Saimon is permitted to withdraw as the Enengeitaw Clan’s counsel and new counsel should file his or her appearance by May 8, 2007. The Clan’s motion to stay is denied. The clerk shall make the certified record available to the appellees. Any copying charges incurred will be taxable as costs to the non-prevailing party(ies). The appellees may move to strike any document in the Clan’s appendix if it is not a part of the certified record. The appellees shall file their answering briefs no later than June 1, 2007. Any reply brief from the Clan shall be filed by June 11, 2007. The Heirs of Osame Shirai are substituted as appellees for the deceased Fuminory Shirai. Shirai’s motions to dismiss are denied.

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We signed the above order on April 30, 2007, and we believe it was entered on the same and served shortly thereafter. However, the appellate clerk has left for Hawaii and the court staff cannot verify that the order has been entered and served. So in the abundance of caution, we have signed the order again and hereby order it entered and promptly served.

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Footnotes:

^1. This lapse by the clerk’s office in serving counsel the certification of record is unexplained and the source of some of the difficulty in overcoming procedural hurdles in order to proceed to a resolution of this appeal.

^2. There are two versions of Appellate Rule 12(c) in circulation. One version limits the cost of duplicating the record to "ten cents per page." In light of our ruling, we do not need to decide which version is official.

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