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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Chief Justice:

The appellant Kalio Edwin (Edwin) has appealed to this court from an adverse decision of the appellate division of the Pohnpei Supreme Court appellate division.

I. ISSUE ADDRESSED

Whether the FSM Supreme Court appellate division has jurisdiction to hear this appeal from the Pohnpei Supreme Court appellate division when the Appellant did not raise FSM Constitutional grounds, national law, or treaty in the court below and when the Appellant has not alleged any other specific basis for jurisdiction.

II. BACKGROUND

On January 22, 2003, the Pohnpei Supreme Court trial division issued an order granting summary judgment against defendant Edwin in PCA No. 77-01, finding that plaintiff Herculano Kohler was entitled to judgment as a matter of law. That court found that Edwin had breached a partnership agreement with Kohler and that he had been damaged to the extent of his share of the profits received by Edwin from the partnership operations. Edwin then filed a motion to set aside summary judgment on September 14, 2004, which the trial division heard on January 19, 2009. That court denied Edwin's motion, upholding summary judgment, by order on March 11, 2010.

Edwin then appealed to the Pohnpei Supreme Court appellate division on March 26, 2010, which was later assigned Appeal No. 12-11. By an Opinion issued on April 15, 2013, with one member dissenting, the appellate division ruled that the trial division did not err and affirmed the summary judgment. Subsequently, Edwin filed a Petition for Rehearing on July 10, 2013, which the appellate division denied on September 4, 2015. Edwin then appealed to the FSM Supreme Court appellate division on October 22, 2015.¹

On April 28, 2016, the Appellee Herculano Kohler (Kohler) filed his motion to dismiss based on lack of jurisdiction and failure to timely file a brief within the time provided by FSM Appellate Rule 31(a). To date, we have not addressed this motion. It remained unopposed, presumably because it was prematurely filed, until this Court ordered Edwin to respond. Namely, when it was originally filed, there was no basis to dismiss for failure to timely file an opening brief since the record had not yet been certified and thus no opening brief was due, and there was no apparent ground to dismiss for lack of jurisdiction when there was no record available from which we could determine whether we would have jurisdiction.

To remedy the lack of information before us, we, by separate orders entered May 11, 2016, ordered the Appellant Edwin to produce the orders appealed from and ordered the Clerk of the Pohnpei Supreme Court appellate division to assemble, certify, and transmit the official record to the clerk of the FSM Supreme Court appellate division.

On June 6, 2016, Edwin submitted the orders appealed from and on July 19, 2016, the Acting Clerk of the Pohnpei Supreme Court appellate division filed her record ready notice. The Notice of Briefing Scheduling was then entered on October 11, 2016, making Edwin's opening brief and appendix due no later than November 25, 2016. On that date, Edwin filed a motion for enlargement of time, which we granted on November 30, 2016, making his brief and appendix due no later than December 27, 2016. On December 26, 2016, Edwin filed his second Motion for Enlargement of Time within which to file his opening brief and appendix.

On December 29, 2016, we declined to rule on Edwin's second Motion for Enlargement of Time, instead electing to hold the briefing schedule in abeyance and consider Kohler's Motion to Dismiss for lack of jurisdiction and Rule 31(c). The court ordered Edwin to respond to that motion no later than January 9, 2017 and allowed Kohler to reply no later than January 16, 2017. Edwin submitted his Opposition to Motion to Dismiss on January 9, 2017. Kohler did not submit a reply.

III. ANALYSIS

In his Motion to Dismiss, Kohler contends that the FSM Supreme Court appellate division lacks jurisdiction to hear this appeal because the underlying dispute does not require interpretation of the FSM Constitution, but rather involves only a contract dispute. In his opposition, Edwin contends that the appeal is properly before us because "[t]he matter is strictly on the FSM Constitution's Due Process Clause." Appellant's Opp'n to Mot. to Dismiss at 2.

Edwin, however, fails to state exactly how the FSM Constitution's Due Process clause is implicated in this matter. His Statement of Issues on appeal states "[t]he September 4, 2015 Order Denying Rehearing and April 15, 2013 Opinion as well [as] the summary judgment in the Trial Division were erroneous in fact and law and having so decided, violated Appellant's due process rights under the Constitution of the FSM." His opposition quotes this language and offers as proof of jurisdiction in this court the single conclusory statement that the matter involves a violation of the FSM Constitution's due process clause.

In support of his argument, Edwin cites Damarlane v. Pohnpei Legislature, 8 FSM R. 23, 27 (App. 1997). That case confirmed that the FSM Supreme Court appellate division has jurisdiction to hear an appeal from the Pohnpei State Supreme Court appellate division, but only under certain conditions. Where the Appellant raised FSM Constitutional grounds in his case on the merits below and where the Appellant contends that he was denied due process rights because a justice of the court below failed to recuse himself for bias, where the appellant had raised the issue below but the matter was not addressed, the court found it properly exercised jurisdiction over the matter. Damarlane, 8 FSM R. at 25. The appellant in Damarlane appealed from the Pohnpei Supreme Court appellate division the following issues:

1. Does the FSM Supreme Court Appellate Division have jurisdiction to hear this appeal from the Pohnpei Supreme Court Appellate Division where the appellant raised FSM Constitutional grounds below but which were not decided? Do we also have jurisdiction where the appellant contends that he was denied his due process rights because a justice of the court below failed to recuse himself for bias and where the appellant had raised the issue below but the matter was not addressed?

2. Did ad hominem remarks directed to counsel for appellant made by the Chief Justice of the Pohnpei Supreme Court, who sat on the appeal of this case, in a pleading in a separate case in which the Chief Justice was defendant "individually and in his official capacity as Chief Justice of the Pohnpei Supreme Court," deprive the appellant of a fair hearing before the Pohnpei Supreme Court Appellate Division in violation of the due process rights of the appellant?

Id. The court held that it had jurisdiction in both instances and that the appellant was deprived of due process as a result of Chief Justice's failure to recuse himself where he had a clear duty to do so.

On the contrary, in the present case, Edwin raised no issues at either the trial or appellate divisions of the Pohnpei Supreme Court that required interpretation of the FSM Constitution, national law, or treaty, neither does he indicate any prejudicial procedural error or otherwise that infringes upon his due process rights under the FSM Constitution. Looking at the record below, this matter stems from a contract dispute, and thus is distinguishable from Damarlane. Unlike Damarlane, where the appellant clearly alleged a violation of his right to freedom of expression protected under both the FSM and Pohnpei Constitutions in addition to alleging a specific violation of due process because a member of the appellate panel should have recused himself in the court below.

Edwin did not allege any facts, law, or error by the lower court that implicates either interpretation of the FSM Constitution, national law, or treaty or a violation thereof. Even if Edwin were permitted by us to brief the matter and a constitutional issue was raised for the first time here, it would not properly before us for review. Alfons v. FSM, 5 FSM R. 402, 404 (App. 1992) ("[A]n issue not raised at trial cannot be introduced for the first time on appeal."); Loney v. FSM, 3 FSM R. 151, 154 (App. 1987). Unlike here, the appellant in Damarlane alleged two bases in the court below on which the court could exercise jurisdiction: (1) an allegation in the court below that his right to freedom of expression was violated under both the FSM and Pohnpei Constitutions and (2) a motion to recuse which raised the issue of due process under the FSM Constitution.

As we stated before, Edwin has thus offered us no basis on which we could properly exercise jurisdiction, despite being given the opportunity to do so, not only in his Statement of Issues, but also in his Opposition to Motion to Dismiss. Instead, Edwin is content to recite the same self-serving statement that his due process rights were violated by the orders of the Pohnpei Supreme Court trial and appellate divisions without further explaining how or why those orders violated due process under the FSM Constitution.

Litigants cannot argue that, in their view, they were deprived of due process because the Pohnpei Supreme Court appellate division wrongly decided a matter of state law. A Pohnpei Supreme Court appellate division decision on Pohnpei state law is always correct. It is not correct because the Pohnpei Supreme Court appellate division is infallible. It is correct because, until the Pohnpei Supreme Court appellate division reverses or overrules its prior decision, it is final.

It is evident to us that, in filing this appeal, Edwin attempts to have a second bite of the proverbial appellate apple in having the lower courts' decisions reviewed, yet again, by the FSM Supreme Court appellate division. We are not in a position to review decisions of the Pohnpei Supreme Court appellate division that do not involve interpretation of the FSM Constitution, national law or treaty, or that do not involve some other violation of the FSM Constitution, see e.g., Etscheit v. Santos, 5 FSM R. 35 (App. 1991) (declaring that the trial judge also sitting on the appeal had a clear, nondiscretionary duty to step aside and that the petitioner had a constitutional right of due process to obtain compliance with that duty), even when a litigant contends that court's decision might have been wrongly decided.

IV. CONCLUSION

For the reasons stated, we lack jurisdiction to hear this appeal. It is accordingly ordered that the appellee Kohler's Motion to Dismiss Appeal for Lack of Jurisdiction is HEREBY GRANTED.

Footnotes:

¹ We may also lack jurisdiction over this matter because it was not timely appealed. Notices of appeal must be filed within forty-two days of entry of the order appealed from. FSM App. R. 4(a)(1). October 16, 2015 was the forty-second day after the Pohnpei Supreme Court appellate division's denial of the petition for rehearing. An October 22, 2015 Notice of Appeal was thus untimely. See Ruben v. Chuuk, 18 FSM R. 604, 607-08 (App. 2013).