CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Baelo v. Sipu , 16 FSM Intrm. 288 (Chk. S. Ct. App. 2009)

[16 FSM Intrm 288]

CIVIL APPEAL CASE NO. 02-2002

ORDER OF DISMISSAL

Hearing: January 20, 2009

Decided: February 2, 2009

BEFORE:

Hon. Camillo Noket, Chief Justice, Presiding

Hon. Dennis K. Yamase, Temporary Justice*

Hon. William E. Minkley, Temporary Justice**

*Associate Justice, FSM Supreme Court, Pohnpei

**Attorney at Law, Weno, Chuuk

APPEARANCE:

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HEADNOTES

    By rule, an appellant must serve and file a brief within 40 days after the date of the appellate clerk’s notice that the record is ready. The date of the clerk’s notice that the record is ready triggers the running of the due date of an appellant’s brief. Baelo v. Sipu, 16 FSM Intrm. 288, 291 (Chk. S. Ct. App. 2009).

    If an appellant fails to file a brief within the rules’ time frames, or within the time as extended, an appeal is subject to dismissal for lack of prosecution. The appellate division, however, has broad discretion upon a showing of good cause, to grant an extension of time to file a brief and appendix. Baelo v. Sipu, 16 FSM Intrm. 288, 291 (Chk. S. Ct. App. 2009).

    The court may raise sua sponte whether an appeal may be dismissed for lack of prosecution, and there is no due process violation when a court orders dismissal upon its own motion so long as the appellant has had notice and an opportunity to be heard on the motion. Baelo v. Sipu, 16 FSM Intrm. 288, 291 (Chk. S. Ct. App. 2009).

    Generally, an appeal’s dismissal for failure to comply with procedural rules is not favored, and the court’s discretion to dismiss an appeal should be sparingly used unless the appellant has had an opportunity to cure the default and failed to do so. Before dismissing an appeal, a court should therefore 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 default. Baelo v. Sipu, 16 FSM Intrm. 288, 292 (Chk. S. Ct. App. 2009).

    Generally, oral argument is not set until after the necessary steps have been taken to allow for the preparation of brief, namely the certification and notice that the record is available, which notice provides the date from which the forty-day deadline for filing an opening brief is counted. Baelo v. Sipu, 16 FSM Intrm. 288, 292 (Chk. S. Ct. App. 2009).

    When, on October 10, 2002, the appellants designated the entire trial court record and ordered a transcript of all trial court testimony for the appeal; when, almost five years later, on September 23, 2007, appellants’ counsel filed a motion to certify the record although during the numerous proceedings during the almost five-year interim between the designation of the record and the motion to certify, counsel did not raise the issue of certification and availability of record, but instead requested continuances based on the existence of ongoing settlement negotiations and the need for additional time to prepare a brief; when, if counsel had, at any time after August 10, 2004, inquired with the clerk

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regarding the record he would have discovered that the record was certified and available; when the case was first called for oral argument on May 2, 2007, and the appellants then represented to the court that continuance was needed for reasons other than any delay in assembling and transmitting the record, the court is not inclined to consider the clerk’s apparent oversight in promptly notifying the appellants that the record was available as a reason for the appellants’ continuing failure to meet court deadlines for filing their brief. Baelo v. Sipu, 16 FSM Intrm. 288, 292 (Chk. S. Ct. App. 2009).

    While it is the clerk’s obligation to notify counsel when the record is ready, counsel also has an obligation to ensure that the record is assembled and transmitted. Baelo v. Sipu, 16 FSM Intrm. 288, 292 (Chk. S. Ct. App. 2009).

    When a single justice order was a sua sponte motion for counsel to file an opening brief by October 12, 2007, or to show cause why the appeal should not be dismissed and when the court has weighed the appellants’ subsequent failure to file a brief without good cause against the clerk’s apparent delay in notifying counsel of the record’s certification and availability, and against the court’s preference to hear an appeal on the merits instead of resolving it on procedural grounds, the court finds that even after the clerk notified the appellants, on March 28, 2008, that the record was available, the appellants had ample time to comply with the filing deadlines and file a brief before the January 20, 2009 hearing, and when counsel did not file a brief within three days of the January 20, 2009 hearing, as he promised, the court concludes that the numerous, unjustified delays in filing a brief without good cause warrant dismissal. Baelo v. Sipu, 16 FSM Intrm. 288, 292-93 (Chk. S. Ct. App. 2009).

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COURT’S OPINION

CAMILLO NOKET, Chief Justice:

    This matter was filed in the appellate division of the Chuuk State Supreme Court as an appeal of the trial court judgment in Civil Action 54-2000 awarding ownership of certain real property referred to as Leningar (or Neningar), located in Epin Village, Patta Island, to appellees Singeuo Sibu and Onis Silo. Based on appellants’ continuing delay, without good cause, in filing an opening brief, the case is dismissed.

I. Background

    On October 9, 2002, appellants filed their notice of appeal from the September 10, 2002 trial court judgment finding that appellees, Singeuo Sibu and Onis Silo, owned Leningar, in Epin Village, Patta Island, and that appellants, who were interveners at the trial court, only had permissive use rights to live on the property.

    By notice issued on February 23, 2007, oral argument was set for May 2, 2007. When the case was called on May 2, 2007, appellants moved for a continuance to file their opening brief to allow time to negotiate a settlement. By order issued on May 4, 2007, the court granted a forty-five (45) day continuance, and ordered that appellants file a brief by July 30, 2007 if the case was not settled, dismissed, or a motion to dismiss filed by then. Another order from the court issued on July 2, 2007, repeated that appellants’ brief was due July 30, 2007, as the case had not been settled or dismissed since May 4, 2007. On July 31, 2007, appellants moved to allow additional time to file their brief, requesting an extension until August 9, 2007. By its August 21, 2007 order, the court extended the

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deadline to file a brief until August 31, 2007. On August 31, 2007, counsel, without the consent of the court, stipulated to a further extension for filing appellants’ brief to September 20, 2007. On September 3, 2007, the court issued a single justice order wherein it stated that counsels’ August 31, 2007 stipulation did not satisfy the requirements of a motion, and that the court could not determine whether there was good cause to grant the stipulated extension. Nonetheless, by that order, the court extended the brief’s due date until September 18, 2007, on the condition that no further extensions would be granted and that failure to meet that deadline would subject the appeal to dismissal without being heard on the merits. On September 18, 2007, appellants filed yet another motion to extend time to file an opening brief, seeking a continuance to September 24, 2007.

    On September 23, 2007, appellants filed a motion to order certification of the appellate record. Although the trial court record indicates that the record was certified on August 10, 2004, and the record was filed with appellate clerk and available at that time, the certification was not filed with the appellate clerk until October 17, 2007. There is no record that appellants were notified of the record’s availability at the time of the August 10, 1004 certification. On September 27, 2007, the court issued another order setting a "final deadline" for the filing of appellants’ brief by October 12, 2007.

    On March 20, 2008, the appellate clerk issued a notice that the record on appeal was ready. On June 11, 2008, the appellate clerk issued a second notice stating that the record was certified and filed, and that appellants’ brief was due, by rule, within forty (40) days of the filing of the record. On January 9, 2009, the appellate clerk issued a notice stating that the deadline for filing an appellants’ brief had passed.

    On January 12, 2009, the court set oral argument for January 20, 2009. On January 20, 2009, appellants’ counsel appeared and requested a further continuance, reiterating the reasons given for previous continuances, namely, the possibility of settlement would be hampered and counsel’s inability to adequately prepare his brief due to delays in certification of the record. Counsel stated that he was working on the brief and asked that he be given three (3) days from the hearing date to file it. The court took the matter under advisement.

II. Applicable Law

    By rule, an appellant must serve and file a brief within 40 days after the date of the appellate clerk’s notice that the record is ready. Chk. App. R. 31(a); see also Cuipan v. FSM, 10 FSM Intrm. 323, 325 (App. 2001). The date of notice from the clerk that the record is ready triggers the running of the due date of an appellant’s brief. Chk. App. R. 31(a); Cuipan, 10 FSM Intrm. at 325; see also Federated Shipping Co. v. Ponape Transfer & Storage, 5 FSM Intrm. 89, 91 (App. 1991). If an appellant fails to file a brief within the rules’ time frames, or within the time as extended, an appeal is subject to dismissal for lack of prosecution. Chk. App. R. 31(c); Chk. App. R. 3(a); Cuipan, 10 FSM Intrm. at 325. The court should not have to instruct attorneys that the court rules, including filing deadlines, mean what they say, because an attorney practicing before the court is expected to know the rules and abide by them. Chuuk v. Davis, 13 FSM Intrm. 178, 183 (App. 2005). The appellate division has broad discretion, however, upon a showing of good cause, to grant an extension of time to file a brief and appendix. O’Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

    The court may raise sua sponte whether an appeal may be dismissed for lack of prosecution, and there is no due process violation when a court orders dismissal upon its own motion so long as appellant has had notice and an opportunity to be heard on the motion. Wainit v. Weno, 10 FSM Intrm. 601, 606 (Chk. S. Ct. App. 2002); see also Os v. Enlet, 8 FSM Intrm. 587, 588 (Chk. S. Ct. App. 1998) (appeal may be dismissed on the court’s own motion when little or no action is taken beyond filing a notice of appeal, when the court sets dates for oral argument and filing appellant’s opening

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brief, and when the court states that failure to file an opening brief is grounds for dismissal); see also Walter v. Welle, 8 FSM Intrm. 595, 596 (Chk. S. Ct. App. 1998) (appeal may be dismissed when the appellants have been served with a notice of oral argument and briefing schedule which required appellant’s brief to be filed no later than a certain date; when appellants have filed no brief; when no continuance was requested or granted before oral argument, and at oral argument appellants’ counsel offered no reasonable justification for not filing a brief). Generally, dismissal of an appeal for failure to comply with procedural rules is not favored, however, so the court’s discretion to dismiss an appeal should be sparingly used unless the appellant has had an opportunity to cure the default and failed to do so. Wainit, 10 FSM Intrm. at 608. Before dismissing an appeal, a court should therefore 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 default. Id.

III. Application of Law

    In this case, appellants filed a notice of appeal on October 9, 2002, but since then have taken little action on the appeal, other than to request numerous continuances, and have failed to comply with the procedural rules and with numerous orders and notices setting deadlines for filing an opening brief.

    Oral argument was originally set for May 2, 2007. Generally, oral argument is not set until after the necessary steps have been taken to allow for the preparation of brief, namely the certification and notice that the record is available, which notice provides the date from which the forty-day deadline for filing an opening brief is counted. Chk. App. R. 31(a); Cuipan, 10 FSM Intrm. at 325.

    The court does not find that the reasons given by counsel on January 20, 2009 constitute good cause for a further extension to file a brief. On October 10, 2002, appellants designated the entire trial court record and ordered a transcript of all trial court testimony for the appeal. Almost five years later, on September 23, 2007, counsel filed a motion to certify the record. During the numerous proceedings during the almost five-year interim between the designation of the record and the motion to certify, however, counsel did not raise the issue of certification and availability of record, but instead requested continuances based on the existence of ongoing settlement negotiations and the need for additional time to prepare a brief. If counsel had inquired with the clerk regarding the record, at any time after August 10, 2004, he would have discovered that the record was certified and the record available. While it is the clerk’s obligation to notify counsel when the record is ready, counsel also has an obligation to ensure that the record is assembled and transmitted. See Chk. App. R. 11(a). When this case was first called for oral argument on May 2, 2007, appellants represented to the court that continuance was needed for reasons other than any delay in the assembling and transmission of the record. The court is therefore not inclined to consider the clerk’s apparent oversight in promptly notifying appellants that the record was available as a reason for appellants’ continuing failure to meet the court’s deadlines for the filing of a brief.

    The court considers its September 28, 2008 single justice order to have been a sua sponte motion for counsel to file an opening brief by October 12, 2007, or show cause why the appeal should not be dismissed. The court weighs appellants’ subsequent failure to file a brief without good cause against the clerk’s apparent delay in notifying counsel of the certification and availability of the record, and the court’s preference to hear the appeal on the merits, and not to resolve it on procedural grounds. Wainit, 10 FSM Intrm. at 608.

    The court finds that even after the clerk notified appellants that the record was available, on March 28, 2008, appellants had ample time to comply with the filing deadlines and file a brief in advance of the January 20, 2009 hearing. The court also notes that counsel did not file a brief within

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three (3) days from the January 20, 2009 hearing, as was promised. The court concludes that the numerous, unjustified delays in filing a brief without good cause warrant dismissal.

IV. Conclusion

The appeal is dismissed.

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