FSM SUPREME COURT APPELLATE DIVISION
Cite as Jano v. Santos, 21 FSM R. 241 (App. 2017)
MARTIN JANO,
Appellant,
vs.
KALIDO SANTOS,
Appellee.
APPEAL CASE NO. P3-2014
ORDER OF DISMISSAL
Decided: April 17, 2017
BEFORE:
Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Appellant: Salomon Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941
For the Appellee: Marstella E. Jack, Esq.
P.O. Box 2210
Kolonia, Pohnpei FM 96941
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In the appellate court, unlike the trial court, a party does not have an automatic right to appear pro se and must seek permission. In the absence of express appellate division permission to appear without the supervision of an attorney, the court will require all appellate level briefs and other documents to be signed by an attorney authorized to practice before the FSM Supreme Court. Any appellate submissions not so signed shall be rejected by the Clerk of Courts. Jano v. Santos, 21 FSM R. 241, 243 n.1 (App. 2017).
When the Pohnpei Supreme Court appellate division did not, in its order denying that a motion to reconsider (or at any other time), address the appellant's contention that a member of the appellate panel that issued the order of dismissal was disqualified from sitting on the appeal, it is apparent that the appellant properly raised, in the court below, an issue requiring interpretation of the FSM Constitution. Jano v. Santos, 21 FSM R. 241, 244-45 (App. 2017).
The FSM Supreme Court appellate division could properly exercise jurisdiction of an appeal from the Pohnpei Supreme Court appellate division when the appellant properly alleged an issue in the court below that implicated interpretation of the FSM Constitution but which the court below did not address. Jano v. Santos, 21 FSM R. 241, 245 (App. 2017).
An appellate court is obliged to examine the basis for its jurisdiction even if neither party has raised a particular issue affecting jurisdiction. Jano v. Santos, 21 FSM R. 241, 245 (App. 2017).
A notice of appeal was untimely when the order appealed from was filed and entered on the docket on December 23, 2013 and the appellant filed his notice of appeal on February 10, 2014, because a notice of appeal in a civil case must be filed within 42 days after the date of the entry of the judgment or order appealed from and the 42nd day was February 3, 2014 and because the appellant did not file a motion for extension of time within which to file his notice of appeal and the time for filing for a 30-day extension expired on March 5, 2014. Jano v. Santos, 21 FSM R. 241, 245 (App. 2017).
The court appealed from may grant an extension of time for the filing of a notice of appeal not exceeding 30 days upon motion filed within 30 days of the expiration of the 42 days prescribed in Rule 4(a)(1) upon a showing of excusable neglect or good cause. Jano v. Santos, 21 FSM R. 241, 245 n.4 (App. 2017).
The interest protected by having exact time limits to appeal cases is the finality of judgments. While the paramount goal is to provide a full and fair opportunity for the parties to be heard and to reach an enlightened result understandable to all of the parties, an important subsidiary goal is to end the litigation itself and to reach a final decision. Jano v. Santos, 21 FSM R. 241, 245-46 (App. 2017).
The timely filing of a notice of appeal is jurisdictional and mandatory. Jano v. Santos, 21 FSM R. 241, 246 (App. 2017).
An untimely filing of a notice of appeal absolutely deprives the appellate division of jurisdiction, and it must dismiss an appeal that was untimely filed no matter how meritorious it believes the appellant's claims to be. Jano v. Santos, 21 FSM R. 241, 246 (App. 2017).
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DENNIS K. YAMASE, Chief Justice:
The Appellant Martin Jano (Jano) has appealed to this Court from an adverse decision of the Pohnpei Supreme Court appellate division. The appeal is dismissed for lack of jurisdiction since a timely notice of appeal from a final decision is a prerequisite to our jurisdiction over an appeal.
Whether the FSM Supreme Court appellate division has jurisdiction of an appeal in which the notice of appeal was filed 49 days after the filing of the final order appealed from, in which the Appellant acknowledges receiving service of the order on the 28th day, and in which no enlargement of time was requested prior to the filing of the notice of appeal.
On September 10, 2013, the Pohnpei Supreme Court appellate division issued an order of dismissal in Appeal No. 12-12, finding that Jano had failed to timely perfect his appeal and affirming the trial judgment. The Pohnpei Supreme Court acting appellate clerk entered that order on October 17, 2013. Jano then filed a motion for reconsideration pursuant to Rule 19 of the Pohnpei Rules of Civil Procedure on October 28, 2013. The Pohnpei Supreme Court appellate division entered an order denying Jano's motion for reconsideration on December 23, 2013 and upholding the dismissal. Jano then appealed to the FSM Supreme Court appellate division on February 10, 2014.
Santos filed a motion to dismiss the appeal based on Rule 31(c) of the FSM Rules of Appellate Procedure for failure to timely file a brief within the time provided by FSM Appellate Rule 31(a) on April 6, 2016 and a supplement thereto on April 28, 2016. To date, we have not addressed this motion nor the supplement. It remained unopposed, presumably because it was prematurely filed, until this Court ordered Jano to respond. Namely, when the motion 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 Jano to produce the order 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 May 19, 2016, Jano, acting pro se without seeking leave of court to do so, 1 filed an incomplete report to the court that provided a Pohnpei Supreme Court trial division order and two appellate level filings by him, but lacked the final order appealed from. On July 19, 2016, the Clerk of the Pohnpei Supreme Court appellate division filed the Certification of Record and Notice of Record Ready. The Notice of Briefing Scheduling was then entered on October 11, 2016, making Jano's opening brief and appendix due no later than November 25, 2016.
On December 20, 2016, no brief having been filed by Jano, Santos filed his second motion to dismiss the appeal based on Rule 31(c) of the FSM Appellate Rules. On January 3, 2017, Jano, now represented by counsel admitted to appear before this Court, filed a Motion for Enlargement of Time within which to oppose the motions to dismiss the appeal. Good cause appearing, the court granted Jano's motion on January 9, 2017, giving Jano until January 26, 2017 to file his opposition to the
pending motions to dismiss. Jano submitted his Opposition to Motion to Dismiss concurrently with a Motion for Enlargement of Time on January 25, 2017. The motion for enlargement sought an additional thirty days from the resolution of the motion to dismiss for him to submit his brief and appendix because, should the motion be decided against him, it would obviate the need to prepare those submissions. Santos did not submit a reply.
A. Santos' Motion to Dismiss Based on Lack of Jurisdiction Under Article XI, Section 7 of the Constitution of the Federated States of Micronesia
In his Supplement to Motion to Dismiss [the] Appeal, Santos 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, national law or treaty, but rather involves only breach of contract and trespass dispute. Appellee's Supp. to Mot. to Dismiss Appeal at 1-3 (Apr. 28, 2016). In his opposition, Jano 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 (Jan. 25, 2017).
Jano, 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 December 23, 2013[]Order denying reconsideration of the Order dismissing Appellant's appeal was erroneous in fact and law [and] was a result of an abuse of discretion which resulted in the violation of Appellant's due process rights protected under Article IV of the Constitution of the Federated States of Micronesia." His opposition relies on 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, Jano 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 Supreme Court appellate division, but only under certain conditions. Where the Appellant raised FSM Constitution grounds in its 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. Unlike here, the appellant in Damarlane put forth before the appellate court two detailed issues on appeal, specifically recounting the reasons the FSM Constitution's due process clause was implicated by the actions of the court below. Edwin v. Kohler, 21 FSM R. 133, 136-37 (App. 2017).
Despite Jano's dilatory lack of detail in his statement of issues on appeal and opposition to the motion to dismiss insofar as failing to allege any facts, law or error by the lower court that implicates interpretation of the FSM Constitution, national law or treaty, in conducting our own review of the record below, it is apparent that Jano raised an issue arising under the FSM Constitution in the court below but was not addressed. In his motion for reconsideration of the Pohnpei Supreme Court appellate division's dismissal order, Jano contends that his rights to due process under the Pohnpei and FSM Constitutions were denied because a justice sat as the "trial judge in the same case when it was filed earlier under PCA No. 114-99 . . . [wherein that judge] accepted the parties' settlement in the earlier case which later formed Pohnpei Civil Action No. 4-10." Appellant's Req. to Recons. Pursuant to Rule 19 at 2-3, Jano v. Santos, Pohnpei App. No. 12-12 (Oct. 28, 2013). The Pohnpei Supreme Court appellate division did not, in its order denying that motion nor at any other time, address Jano's contention that a member of the appellate panel that issued the order of dismissal was disqualified from sitting on the appeal.
Without making a ruling on the merits of the issue, it is apparent from the record on appeal that Jano properly raised an issue requiring interpretation of the FSM Constitution, national law or treaty in the court below. It is clear from the record that Jano first became aware the potentially disqualified justice was a member of the appellate panel for the first time when the Pohnpei Supreme Court appellate division issued its order of dismissal. 2 Jano then brought the disqualification issue to that court's attention by way of his motion to reconsider filed October 28, 2013. 3 Based on the foregoing review of the record below, we conclude that we could properly exercise jurisdiction of this appeal, but for the issue addressed sua sponte in Part III.B., because Jano properly alleged an issue implicating interpretation of the FSM Constitution but the matter was not addressed by the court below.
B. Timeliness of Notice of Appeal
We are obliged to examine the basis for our jurisdiction even if neither party has raised a particular issue affecting jurisdiction. Iriarte v. Individual Insurance Co., 17 FSM R. 356, 358 n.1 (App. 2011); Kosrae v. George, 17 FSM R. 5, 7 (App. 2010); Kosrae v. Benjamin, 17 FSM R. 1, 3 (App. 2010); Alanso v. Pridgen, 15 FSM R. 597, 598 n.1 (App. 2008); Berman v. College of Micronesia-FSM, 15 FSM R. 582, 588 (App. 2008).
The order appealed from in this case was filed and entered on the docket on December 23, 2013. Jano filed his notice of appeal on February 10, 2014 pursuant to Rule 4(a) of the FSM Rules of Appellate Procedure.
Rule 4(a)(1) states that the notice of appeal in civil cases "shall be filed . . . within 42 days after the date of the entry of the judgment or order appealed from." The 42nd day Jano's notice of appeal would have been timely without an extension of time was February 3, 2014. Jano filed his Notice of Appeal on February 10, 2014, but did not file a motion for extension of time within which to file his notice of appeal pursuant to Rule 4(a)(5) of the FSM Rules of Appellate Procedure. 4 Additionally, the time for filing an extension has since passed because the 30 days allowed by Rule 4(a)(5) expired on March 5, 2014. See FSM App. R. 4(a)(5) ("No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later."); see, e.g., Jonas v. Mobil Oil Micronesia, Inc., 2 FSM R. 164, 166 (App. 1986) (notice of appeal untimely where plaintiffs filed their notice of appeal together with a motion for enlargement on October 12, 1984 when the 30 days extension allowed by Rule 4(a)(5) had expired on October 4, 1984).
The interest protected by having exact time limits is the finality of judgments.
There are several reasons why courts see this interest in preserving the final effect of judgments as important. First, the final resolution of a legal conflict should be useful in ending festering and troublesome disputes and restoring order between the disputants and those around them. Second, the final determination of rights frees the prevailing party to exercise the rights which were at issue and allows any contested resource to be used efficiently. Third, finality is intended to prevent both the parties and governmental institutions from devoting still more resources to the dispute itself.
While the paramount goal is to provide a full and fair opportunity for the parties to be heard and to reach an enlightened result understandable to all of the parties, an important subsidiary goal is to end the litigation itself and to reach a final decision.
Jonas, 2 FSM R. at 166. The timely filing of a notice of appeal is jurisdictional and mandatory. The untimely filing of a notice of appeal absolutely deprives the appellate division of jurisdiction. Akinaga v. Heirs of Mike, 15 FSM R. 391, 395 (App. 2007); Bualuay v. Rano, 11 FSM R. 139, 145 (App. 2002). Therefore, we must dismiss an appeal that was untimely filed no matter how meritorious we believe the appellant's claims to be.
Because the notice of appeal was untimely, we lack jurisdiction to hear this appeal. It is accordingly ordered that this appeal is DISMISSED.
__________________________Footnotes:
1 "In the appellate court, unlike the trial court, a party does not have an automatic right to appear pro se and must seek permission." Wiliander v. National Election Dir., 13 FSM R. 199, 204 n.4 (App. 2005). In the absence of express appellate division permission to appear without the supervision of an attorney, the court will require all appellate level briefs and other documents to be signed by an attorney authorized to practice before the FSM Supreme Court. Any appellate submissions not so signed shall be rejected by the Clerk of Courts. Alaphonso v. FSM, 1 FSM R. 209, 230 n.13 (App. 1982).
2 The Pohnpei Supreme Court Acting Appellate Clerk's Record, R. at 19, dated May 22, 2013, indicates that a status conference was held in which only the presiding justice attended and that the two remaining appellate panel members had yet to be appointed by the Chief Justice. The court took no action until it issued its Dismissal Order on September 10, 2013, wherein the remaining members of the panel were revealed to the parties, including the allegedly disqualified justice.
3 It is perplexing, especially in light of how small the record is on review, why Jano would clearly argue this position in the court below, but not bring it to the forefront of our attention even after being given multiple opportunities to do so.
4 Rule 4(a)(5) permits the court appealed from to grant an extension of time for the filing of a notice of appeal not exceeding 30 days upon motion filed within 30 days of the expiration of the 42 days prescribed in Rule 4(a)(1) upon a showing of excusable neglect or good cause.
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