FSM SUPREME COURT APPELLATE DIVISION

Cite as Setik v. Mendiola, 21 FSM R. 110 (App. 2017)

[21 FSM R. 110]

APPEAL CASE NO. P13-2015

Decided: January 4, 2017

BEFORE:

Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Benjamin F. Rodriguez, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, State Court of Yap, Colonia, Yap
**Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

APPEARANCES:

        For the Appellants:              Yoslyn G. Sigrah, Esq.
                                                    P.O. Box 3018
                                                    Kolonia, Pohnpei FM 96941

        For the Appellee:                 Nora E. Sigrah, Esq.
                                                    P.O. Box M
                                                    Kolonia, Pohnpei FM 96941

Appellate Review – Decisions Reviewable

The well-established general rule is that only final decisions may be appealed. Setik v. Mendiola,

[21 FSM R. 111]

21 FSM R. 110, 112 (App. 2017).

Appellate Review – Decisions Reviewable – Final Decision Defined

A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. A decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of the appeal. Setik v. Mendiola, 21 FSM R. 110, 112 (App. 2017).

Appellate Review – Decisions Reviewable – Final Decision Defined

Generally, an order is not final when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action. Accordingly, a decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of appeal. Setik v. Mendiola, 21 FSM R. 110, 112 (App. 2017).

Appellate Review – Decisions Reviewable – Final Decision Defined

The appellate court lacks jurisdiction to review an appeal from a trial court order that was not even a final decision on whether the trial court would accept the plaintiffs' opposition to the defendants' pending dismissal motion because that order was not a final decision on anything since it left for the trial court's future decision not only whether it would accept a future opposition to the pending motion but also whether the pending motion would be granted or denied. Setik v. Mendiola, 21 FSM R. 110, 113 (App. 2017).

Appellate Review – Decisions Reviewable – Interlocutory

Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders or partial adjudications will eventually merge. Setik v. Mendiola, 21 FSM R. 110, 113 (App. 2017).

Appellate Review – Decisions Reviewable – Interlocutory; Appellate Review – Dismissal

Once an interlocutory order has merged into a final decision or judgment, it may, if that final decision or judgment is appealed, come before the appellate court for review in that appeal and at that time. The appellate court has no jurisdiction to review it in an earlier appeal and will dismiss such an appeal. Setik v. Mendiola, 21 FSM R. 110, 113 (App. 2017).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before us on the Appellees' Motion to Dismiss the Appeal, filed on June 27, 2016; the appellants' Opposition to Motion to Dismiss Appeal, filed on November 8, 2016; and the Appellees' Reply to Opposition, filed November 15, 2016. The motion to dismiss is granted. Our reasons follow.

I.

This appeal is from Civil Action No. 2015-032. In that case, the defendants (appellees in this appeal) filed, on September 18, 2015, a motion to dismiss the plaintiffs' complaint. On September 30, 2015, the plaintiffs (the appellants in this appeal; collectively "the Setiks") filed their motion to enlarge time to oppose the dismissal motion. On October 15, 2015, the trial court denied the Setiks' motion to enlarge time and further instructed the Setiks that they needed to show excusable neglect to succeed on any future motion to enlarge. On October 30, 2015, the Setiks filed their opposition to the

[21 FSM R. 112]

defendants' motion to dismiss but their opposition was not accompanied by any further motion to enlarge time.

On November 20, 2015, the trial court, by order, rejected the Setiks' October 30, 2015 opposition because the Setiks had not shown excusable neglect for the late filing and because they had not complied with Civil Procedure Rule 6(d). Order Re: Plaintiffs' Opposition to Defendants' Motion to Dismiss [The] Complaint ("Order") at 2-3 (Nov. 20, 2015). On December 23, 2015, the Setiks filed their notice that they were appealing the trial court's November 20, 2015 order.

II.

The appellees move to dismiss this appeal on the ground that we lack jurisdiction over it because the appeal is not from a final order or judgment.

The Setiks contend that their appeal of the November 20, 2015 order was timely; that, by rejecting their opposition, the trial court left them unsure whether it was interested in the merits of their opposition; that there were reasonable grounds in their already-filed motion to enlarge for the trial court to grant them an enlargement; that the November 20, 2015 order was a final decision because the trial court had exhibited a pattern of sweeping summary dismissals in this and in the Setiks' other cases; and that the November 20, 2015 order thus cut short their case seeking redress for their grievances based on the lack of constitutional due process.

The appellees reply that the Setiks did not address the authorities they cited to show that the trial court's November 20, 2015 order was a non-appealable interlocutory order. The appellees also ask us to take judicial notice that Civil Action No. 2015-032 is still pending before the trial court.¹

III.

With some exceptions neither asserted nor applicable here, the well-established general rule is that only final decisions may be appealed. Abrams v. FSM Dev. Bank, 20 FSM R. 340, 344 (App. 2016); Mori v. Hasiguchi, 19 FSM R. 416, 419 (App. 2014) (appellate review of a trial court is limited to final orders and judgments); Iriarte v. Individual Assurance Co., 17 FSM R. 356, 359 (App. 2011) (same). "A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Santos v. Bank of Hawaii, 9 FSM R. 285, 287 (App. 1999) (citing Damarlane v. United States, 7 FSM R. 202, 204 (App. 1995)); In re Extradition of Jano, 6 FSM R. 23, 24 (App. 1993).

A decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of the appeal. Abrams, 20 FSM R. at 344 (App. 2016). "'Generally, an order is not final where the substantial rights of the parties involved in the action remain undetermined and where the cause is retained for further action. Accordingly, a decision reserving certain questions for future determination or direction cannot ordinarily be final for the purposes of appeal.'" Mori v. Hasiguchi, 18 FSM R. 83, 84 (App. 2011) (quoting 4 AM. JUR. 2D Appellate Review § 90, at 714 (rev. ed. 1995) (footnote omitted)).

[21 FSM R. 113]

IV.

Here, the trial court's November 20, 2015 order only rejected the October 30, 2015 filing of the Setiks' opposition to the pending motion to dismiss. The trial court did state, in unnecessarily elaborate language, that it expected the Setiks to file an opposition in the future and that if they wanted the court to accept that opposition they had to show excusable neglect for the late filing and comply with Rule 6(d). Order at 2-3 ("as a condition precedent to accepting an envisioned subsequent filing of an Opposition in this matter, the movant[s] must adhere to FSM Civ. R. 6(d) and adequately depict 'excusable neglect,' pursuant to Rule 6(b)(2) in the subject request for an extension").

The November 20, 2015 order was thus not even a final decision on whether the trial court would accept the Setiks' opposition to the defendants' pending dismissal motion. As such, the November 20, 2015 order was not a final decision on anything. It left for the trial court's future decision not only whether it would accept a future opposition to the pending motion but also whether the pending motion would be granted or denied. Since the November 20, 2015 order is not a final decision, we lack jurisdiction to review it in this appeal.

"Appeals are not permitted when the appeal is over issues involving steps moving towards a final order into which the interlocutory orders or partial adjudications will eventually merge." Smith v. Nimea, 16 FSM R. 346, 349 (App. 2009); see also FSM Dev. Bank v. Adams, 12 FSM R. 456, 461 (App. 2004). That is the case here. The November 20, 2015 order will merge into any final decision in Civil Action No. 2015-032 and be appealable then.

V.

Once the November 20, 2015 order has merged into a final decision or judgment, it may, if that final decision or judgment is appealed, come before us for review in that appeal and at that time. We have no jurisdiction to review it in this appeal. This appeal is accordingly dismissed.

Footnotes:

¹ The appellees further note that the Setiks failed to respond to the part of the court order requiring that they "should include in their opposition a designation of just who 'the other heirs of Raymond Setik,' are . . . since the opposing parties are entitled to know who" is suing them. Order Granting Time to File Opposition at 2 (Oct. 31, 2016) (citing FSM Civ. R. 10(a)). This omission has no bearing on our decision here.