FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C2-2009

TONY OTTO,

Real Party in Interest.

ORDER DENYING APRIL 24, 2009 MOTION TO DISMISS

Decided: May 4, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court

Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant: Marstella Jack, Esq.

P.O. Box 2210

Kolonia, Pohnpei FM 96941

For the Real Party in Interest: Joseph Phillip, Esq.

P.O. Box 464

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

    An appeal will not be dismissed because the appellant filed his statement of issues on

[16 FSM Intrm 413]

Wednesday, April 8, 2009, when, under Appellate Rule 10(b)(3), the deadline for filing the statement of issues would have been April 9, 2009; when a court order shortened it to noon "Wednesday April 7, 2009," but this was a typographical error since April 7, 2009 was a Tuesday and Wednesday was April 8, 2009; and when the movant has not asserted that he was prejudiced by the April 8, as opposed to April 7, filing and because the court cannot see how he would have been prejudiced by receiving the statement of issues one day later. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 412, 413 (App. 2009).

    Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. Nelson v. FSM Nat’l Election Dir., 16 FSM Intrm. 412, 413 (App. 2009).

* * * *

COURT’S OPINION

PER CURIAM:

    On April 24, 2009, the real party in interest, Tony Otto, filed a Motion to Dismiss and/or in the Alternative Motion for Summary Judgment. Otto asks that the appeal be dismissed because Nelson filed his Statement of Issues on April 8, 2009, although the court’s April 6, 2009 Scheduling Order set the date and for filing at noon, April 7, 2009. In the alternative, he, asserting the same ground, asks that the court grant him "summary judgment" for Nelson’s failure to comply with the court order to file his statement of issues on April 7, 2009.

    Under Appellate Rule 10(b)(3), the deadline for filing the statement of issues would have been April 9, 2009 (10 days after the notice of appeal was filed). The court order shortened it to noon "Wednesday April 7, 2009." This was a typographical error. April 7, 2009 was a Tuesday and Wednesday was April 8, 2009. The court order was served on Nelson’s counsel on April 6, 2009, at 4:58 p.m. Nelson filed the statement of issues on Wednesday, April 8, 2009. Thus the filing would have been timely under the appellate rule, and would have been timely under the ambiguous court order if Wednesday, April 8 was the day meant. Furthermore, Otto has not asserted that he was prejudiced by the April 8 (as opposed to April 7) filing. We cannot see how he would have been prejudiced by receiving the statement of issues one day later. Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. See Kosrae v. Langu, 16 FSM Intrm. 83, 86-87 (App. 2008); Akinaga v. Heirs of Mike, 15 FSM Intrm. 391, 394 (App. 2007); Damarlane v. Pohnpei Legislature, 15 FSM Intrm. 301, 308 (App. 2007).

    Accordingly, Otto’s April 24, 2009 motion to dismiss and his alternative motion for summary judgment are both denied.

* * * *