CHUUK STATE SUPREME COURT APPELLATE DIVISION

Cite as Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 21 FSM R. 334 (Chk. S. Ct. App. 2017)

[21 FSM R. 334]

CIVIL APPEAL NO. 01-2017

Decided: September 12, 2017

APPEARANCES:

HEADNOTES

Appellate Review – Dismissal

Generally, an appeal should not be dismissed because the person filing the notice of appeal was misled or misinformed by the court staff. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 21 FSM R. 334, 335 (Chk. S. Ct. App. 2017).

Appellate Review – Dismissal

Since an appeal's dismissal for failure to comply with procedural rules is generally not favored, the court's discretion to dismiss an appeal must be sparingly used unless the appellant has had an opportunity to cure the default and has failed to do so. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 21 FSM R. 334, 335 (Chk. S. Ct. App. 2017).

Appellate Review – Dismissal

When an appellant's timely-filed notice of appeal was accepted and filed by a clerk who failed to tell the filer that a $25 fee had to accompany the notice and when the appellant promptly paid the

[21 FSM R. 335]

fee and filed a new notice of appeal once it was informed that a $25 filing fee was due and that was unpaid, the appeal's dismissal will be denied even though the fee was paid after the time to appeal had expired. Chuuk Public Utility Corp. v. Chuuk Health Care Plan, 21 FSM R. 334, 335-36 (Chk. S. Ct. App. 2017).

COURT'S OPINION

LARRY WENTWORTH, Temporary Justice:

This comes before the court on the appellee's Motion to Strike Notice of Appeal; Motion to Dismiss Appeal, filed May 12, 2017, and the appellant's Opposition to Plaintiff's Motion to Strike Appeal and Motion to Dismiss Appeal, filed June 7, 2017. The Chuuk Health Care Plan moves to strike or dismiss this appeal because the appellant's timely March 17, 2017 notice of appeal from the trial court's February 17, 2017 decision was filed without the required $25 filing fee and because the appellant's March 27, 2017 $25 filing fee payment (with a new notice of appeal) was untimely.

It is undisputed that the March 17, 2017 notice of appeal was timely filed and that the clerk who accepted it for filing did not inform the filer that a $25 fee had to accompany the notice. Under Chuuk Appellate Rule 3(a):

An appeal permitted by law as of right shall be taken by filing a notice of appeal with a clerk of the Court appealed from within the time allowed by Rule 4. 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 State Court Appellate Division deems appropriate, which may include dismissal of the appeal.

The March 17, 2017 notice of appeal was filed within the time allowed by Rule 4. It was not accompanied by the $25 filing fee. The clerk who accepted the notice did not mention that a filing fee was also due. Chuuk Public Utilities Corporation ("CPUC") thus failed to comply with Rule 3(e) ("Upon the filing of any . . . notice of appeal, the appellant shall pay to the clerk of the court appealed from such fees as may be established . . . ."). It is undisputed that when the clerk's office informed CPUC that a $25 filing fee was due and that it had not paid, CPUC promptly paid.

Generally, an appeal should not be dismissed because the person filing the notice of appeal was misled or misinformed by the court staff. See Kosrae Island Credit Union v. Obet, 7 FSM R. 193, 194 (App. 1995) (when an appellant's failure to timely and properly file his notice of appeal was because of a court employee's faulty instructions, the appeal's dismissal was unwarranted); see also Phillip v. Moses, 18 FSM R. 85, 87 (Chk. S. Ct. App. 2011) (no dismissal when the failure to serve the appellees a copy of the notice of appeal was not the appellant's fault, but an omission by the trial court clerk); Bossy v. Wainit, 15 FSM R. 30, 32 (Chk. S. Ct. App. 2007) (same).

Since an appeal's dismissal for failure to comply with procedural rules is generally not favored, the court's discretion to dismiss an appeal must be sparingly used unless the appellant has had an opportunity to cure the default and has failed to do so. Baelo v. Sipu, 16 FSM R. 288, 292 (Chk. S. Ct. App. 2009); Wainit v. Weno, 10 FSM R. 601, 608-09 (Chk. S. Ct. App. 2002) (when neither Rule 3(a) nor counsel's conduct in the appeal directs a dismissal, the preference for resolution of matters on the merits should be given effect and dismissal denied). Appellant CPUC was given an opportunity to cure its default. It promptly did so.

Accordingly, the Chuuk Health Care Plan's motion to strike or to dismiss Chuuk Public Utilities Corporation's appeal is denied.