FSM SUPREME COURT APPELLATE DIVISION

Cite as Darra v. Pohnpei, 21 FSM R. 254 (App. 2017)

APPEAL CASE NO. P14-2015

ORDER OF DISMISSAL

Decided: May 19, 2017

BEFORE:

Hon. Ready E. Johnny, Associate Justice
Hon. Beauleen Carl-Worswick, Associate Justice
Hon. Larry Wentworth, Associate Justice

APPEARANCES:

[21 FSM R. 255]

HEADNOTES

Appellate Review – Notice of Appeal

In an appeal from any court other than the FSM Supreme Court trial division, the appellant must also serve a copy of the notice of appeal on the court appealed from. Darra v. Pohnpei, 21 FSM R. 254, 256 (App. 2017).

Appellate Review – Notice of Appeal

An untimely filing of a notice of appeal deprives the appellate court of jurisdiction. Darra v. Pohnpei, 21 FSM R. 254, 256 (App. 2017).

Appellate Review – Notice of Appeal

In an appeal from any court other than the FSM Supreme Court trial division, the appellant must file his notice of appeal: 1) with the clerk of the FSM Supreme Court trial division in the state in which the decision appealed from was made or, at the appellant's option, directly with the clerk of the FSM Supreme Court appellate division and 2) in the court appealed from. Darra v. Pohnpei, 21 FSM R. 254, 256 (App. 2017).

Appellate Review – Notice of Appeal

Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify, and transmit the record to the chief clerk of the FSM Supreme Court appellate division and when no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of this duty. Furthermore, proper respect due the court appealed from, requires that that court be informed of the appeal so that it may, in its discretion, decide whether to stay its judgment and mandate, thus avoiding the unseemly possibility of two courts unknowingly taking inconsistent actions in the same matter. Darra v. Pohnpei, 21 FSM R. 254, 256 (App. 2017).

Appellate Review – Notice of Appeal

The timely filing a notice of appeal is jurisdictional. Darra v. Pohnpei, 21 FSM R. 254, 256 (App. 2017).

Appellate Review – Dismissal; Appellate Review – Notice of Appeal

Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court, but, in the absence of a timely notice of appeal, an appellate court lacks jurisdiction over the appeal and it is then properly dismissed. Darra v. Pohnpei, 21 FSM R. 254, 257 (App. 2017).

Appellate Review – Dismissal; Appellate Review – Notice of Appeal

If the appellant fails to timely file a notice of appeal with the court appealed from, then the appellate court will lack jurisdiction to hear the matter, in which case it must be dismissed. Darra v. Pohnpei, 21 FSM R. 254, 257 (App. 2017).

Appellate Review – Dismissal

When the appellant has been given reasonable notice of his appeal's possible dismissal and has failed to take further action or comply with the court's order, he is deemed to have abandoned his appeal. It will therefore be dismissed. Darra v. Pohnpei, 21 FSM R. 254, 257 (App. 2017).

[21 FSM R. 256]

COURT'S OPINION

PER CURIAM:

On December 28, 2015, Sadako Darra (Darra), through his attorney Joseph S. Phillip, filed a Notice of Appeal in this Court from the final judgment entered in Pohnpei Supreme Court Appeal Case No. 2-11 on November 19, 2015.

This Court's records show that the Notice of Appeal was served on "all parties by hand-delivery on 23, 2015 [sic], by handing a filed copy [to] the Secretary who acknowledge[d] service by putting her initials on the document." Notice of Appeal at 1. The Notice of Appeal further certifies that a copy of the notice was served on the Office of Attorney General on December 23, 2015.

Neither the Notice of Appeal nor the attached certificate of service, however, indicate whether the Notice of Appeal was also filed in the Pohnpei Supreme Court appellate division.

FSM Appellate Rule 3(a) states, inter alia:

In an appeal from any court other than the FSM Supreme Court trial division, the appellant shall also serve a copy of the notice of appeal upon the court appealed from. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court appellate division deems appropriate, which may include dismissal of the appeal.

FSM App. R. 3(a) (emphasis added).

"[O]ur appellate rules, and the cases interpreting them, clearly enunciate that untimely filing of a notice of appeal deprives the appellate division of jurisdiction." Akinaga v. Heirs of Mike, 15 FSM R. 391, 395 (App. 2007). In an appeal from any court other than the FSM Supreme Court trial division, the appellant must file his notice of appeal (1) "with the clerk of the FSM Supreme Court trial division in the State in which the decision appealed from was made or, at the option of the appellant, directly with the clerk of the FSM Supreme Court appellate division" and (2) in the court appealed from. FSM App. R. 3(a); Tafunsak v. Kosrae, 6 FSM R. 467, 468-69 (App. 1994) (single justice order) ("[T]he proper procedure is to file a notice of appeal in both [the court appealed from] and the FSM Supreme Court, either with this Court's trial division [in the state in which the decision appealed from was made] or the appellate division in Pohnpei."); Akinaga, 15 FSM R. at 394-95 (discussing Tafunsak and concluding that filing in both courts is required).

Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division pursuant to FSM Appellate Rule 11(c). When no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division. Furthermore, proper respect due the court appealed from, requires that that court be informed of the appeal so that it may, in its discretion, decide whether to stay its judgment and mandate. It may also avoid the unseemly possibility of two courts unknowingly taking inconsistent actions in the same matter.

More importantly, timely filing a notice of appeal is jurisdictional. Under FSM Appellate Rule 4(a)(1), a notice of appeal in civil cases shall be filed "as provided in Rule 3 within forty-two (42) days

[21 FSM R. 257]

after the date of the entry of the judgment or order appealed from." FSM App. R. 4(a)(1); Kimoul v. FSM, 4 FSM R. 344, 346 (App. 1990). Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court. Department of the Treasury v. FSM Telecomm. Corp., 9 FSM R. 465, 466-67 (App. 2000) (citing Damarlane v. Pohnpei, 9 FSM R. 114, 119 (App. 1999); Damarlane v. United States, 8 FSM R. 14, 16 (App. 1997)). However, in the absence of a timely notice of appeal, an appellate court lacks jurisdiction over the appeal and it is then properly dismissed. O'Sonis v. Bank of Guam, 9 FSM R. 356, 360 (App. 2000).

In this matter, if Darra failed to timely file a notice of appeal with the court appealed from pursuant to FSM Appellate Rules 3 and 4(a)(1), then we will lack jurisdiction to hear the matter, in which case it must be dismissed, although "[a] review of relevant U.S. cases [with differently worded Rules 3 and 4] supports the conclusion that such error does not deprive the appellate division of jurisdiction in this matter." Akinaga, 15 FSM R. at 391; see, e.g., Richey v. Wilkins, 335 F.2d 1, 4 (2d Cir. 1964) (filing of appeal in appellate, not district, court as required not grounds for dismissal when appellee not prejudiced thereby); Phillips v. Johnson, 834 A.2d 938, 944 (Me. 2003) (appeal directed to wrong court); In re Guardianship of Breeahana C., 706 N.W.2d 66, 70 (Neb. Ct. App. 2005) (wrong court designated in notice of appeal). ¹

On August 11, 2016, we ordered Darra to brief us, no later than September 9, 2016, on why this appeal should not be dismissed for lack of jurisdiction. The Certificate of Service indicates that Darra's counsel was personally served the August 11, 2016 Order to Brief the Court on August 16, 2016. To date, we have not received a response.

Darra has been given reasonable notice of this matter's possible dismissal, has failed to take further action or comply with this Court's August 11, 2016 order, and is therefore deemed to have abandoned his appeal. We will therefore dismiss this appeal because it has been abandoned since the appellant has taken no steps other than filing a Notice of Appeal in the FSM Supreme Court. FSM App. R. 3(a).

ACCORDINGLY, for the reasons set forth above, this appellate matter is HEREBY DISMISSED.

Footnotes:

¹ These U.S. cases deal only with appeals from trial courts to the appellate courts of the same sovereign. This appeal is from the court of one sovereign – the State of Pohnpei – to the appellate court of another sovereign – the FSM. As such, the cited U.S. cases are inapplicable.