FSM SUPREME COURT APPELLATE DIVISION
Cite as Jackson v. Siba, 22 FSM R. 224 (App. 2019)
DOROTHY JACKSON and MOVIDA MUMMA,
Appellants,
vs.
BASI SIBA, LUDIG NITHAN, ILSON MACK
WELUNC, JERRY PALSIS, BURDY TALLEY,
EDMOND SALIK, and KOSRAE POLICE
DEPARTMENT,
Appellees.
APPEAL CASE NO. K4-2016
(Civil Action No. 51-14)
OPINION
Argued: May 2, 2018
Decided: April 15, 2019
BEFORE:
Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Mayceleen JD Anson, Specially Assigned Justice, FSM Supreme Court*
*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
APPEARANCES:
For the Appellants:
Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941
For the Appellees:
Snyder H. Simon, Esq.
Kosrae Assistant Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944
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When the issues presented on appeal are framed as the lower court orders "are erroneous and contrary to law," this statement of the issues is too general to be meaningful. The statement of issues should tell the court the question or questions raised. Jackson v. Siba, 22 FSM R. 224, 229 (App. 2019).
The statement of issues must be specific. They must not be so general as to be meaningless. Jackson v. Siba, 22 FSM R. 224, 229 (App. 2019).
In every appellate case, the ultimate question is whether the judgment of the court below should be affirmed or reversed, whether it was supported by the evidence or whether the lower court committed prejudicial error. Stating the issues in such general terms, therefore, tells the court essentially nothing about the particular questions in the case. Jackson v. Siba, 22 FSM R. 224, 229 (App. 2019).
Appellate Rule 28(a)(2), requires a statement of issues in the brief. It does not ask an advocate to do an idle act. The statement of issues is there for a purpose. Jackson v. Siba, 22 FSM R. 224, 229 (App. 2019).
Involuntary dismissals under Kosrae Civil Rule 41(b) are reviewed for abuse of discretion, with adjudication dependent on whether the circumstances surrounding the delay justify dismissal. An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous or 4) the record contains no evidence on which the court rationally could have based its decision. Such abuses must be unusual and exceptional; an appellate court will not merely substitute its judgment for that of the trial court. Jackson v. Siba, 22 FSM R. 224, 229-30 (App. 2019).
When reviewing a trial court's Rule 41(b) dismissal on sufficiency of the evidence, the appropriate standard of review is whether the findings of fact are clearly erroneous. Jackson v. Siba, 22 FSM R. 224, 230 (App. 2019).
A finding is clearly erroneous and reversible error if: 1) the findings are not supported by substantial evidence in the record; 2) the finding was the result of an erroneous conception of the applicable law; or 3) after reviewing the entire body of the evidence in the light most favorable to the appellee, the reviewing court is left with a definite and firm conviction that a mistake has been made. Jackson v. Siba, 22 FSM R. 224, 230 (App. 2019).
Substantial evidence is evidence which a reasoning mind would accept as sufficient to support
a conclusion, and it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance. Jackson v. Siba, 22 FSM R. 224, 230 (App. 2019).
When an appellant takes issue with both the trial court's findings of fact and its subsequent dismissal order, it requires a two-tier analysis. The appellate court first reviews the trial court's findings of fact for clear error. Thereafter, it applies the facts found that are not clearly erroneous, together with those shown by the record as undisputed, and reviews the Rule 41(b) dismissal order under an abuse of discretion standard. Jackson v. Siba, 22 FSM R. 224, 230 (App. 2019).
A counsel's declaration should be sufficient to provide evidence of her illness because, under Kosrae Civil Procedure Rule 11, it is presumptively valid since an attorney's signature constitutes a certificate by the signer that the signer has read the filing and that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith. Jackson v. Siba, 22 FSM R. 224, 231 (App. 2019).
The law does not favor involuntary dismissal. Dismissal under Rule 41(b) should be allowed only when there is a clear record of delay or contumacious conduct by the plaintiff or a serious showing of willful default. Jackson v. Siba, 22 FSM R. 224, 231 (App. 2019).
Rule 41(b) contemplates a reasonable diligence standard. A plaintiff seeking affirmative relief has the burden of pursuing that relief with reasonable diligence. Initially, the plaintiff bears the burden of showing some excuse for any delay in prosecution. If the excuse is anything but frivolous, the burden shifts to the defendant to show prejudice from the delay. If prejudice is demonstrated, the burden shifts back to the plaintiff to show that the force of its excuse outweighs any prejudice to the defendant. In making this analysis, granting or denial of involuntary dismissal ultimately rests in the court's sound discretion. Nevertheless, the record must still support a finding of delay attributable to plaintiff's conduct. Jackson v. Siba, 22 FSM R. 224, 231 (App. 2019).
Implicit in an opposing counsel's assent to a request for a continuance is an acknowledgment that the prejudice does not outweigh the burden of a continuance. Jackson v. Siba, 22 FSM R. 224, 232 (App. 2019).
The plaintiffs are not solely responsible for the delays in a matter when all of the continuances that were granted were attributable to either the court, acting on its own, or to the parties’ mutual agreement. Jackson v. Siba, 22 FSM R. 224, 232 (App. 2019).
Under both Rules 6(b) and 6(d), relief may be granted for "cause shown." The Rule 6(b)(1) "cause shown" standard is a lower standard than the "good cause shown" standard. "Good cause" is a legally sufficient reason. It is the burden placed on the litigant, usually by court rule or order, to show why a request should be granted. Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019).
A motion for enlargement can be granted at any time, and, if made before the time period has
expired, can be granted without notice – that is, ex parte. Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019).
For a court to grant an enlargement under Rule 6(b)(1) for cause shown, a party must demonstrate some justification for the enlargement order's issuance. However, an application for the enlargement of time under Rule 6(b)(1) will normally be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party. Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019).
When it was an error of law for the trial court to apply the fourteen-day rule; when it was a clearly erroneous finding of fact that the previous delays were all, or were mostly attributable to the plaintiffs, it was therefore an abuse of the trial court's discretion not to grant the enlargement under the "cause shown" standard. Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019).
An appellate court will not address a lower court's denial of the plaintiffs' motion for reconsideration when it has vacated the lower court's order of dismissal. Jackson v. Siba, 22 FSM R. 224, 233 (App. 2019).
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DENNIS K. YAMASE, Chief Justice:
This appeal arises from the trial court's involuntary dismissal of plaintiffs' case in chief and denial of motion for reconsideration. We reverse the trial court's dismissal of the action and vacate the court's denial of the motion for reconsideration. Our reasons follow.
(a) Pre-Litigation Events
At about 11 pm on April 24, 2014, Kosrae police spoke with the plaintiffs in their parked vehicle. Plaintiff Movida Mumma was the driver, with plaintiff Dorothy Jackson in the passenger seat. They were parked alongside the airport runway fence. According to plaintiffs, they were attempting to get a clear cell phone connection.
Two police officers pulled up behind the plaintiffs and questioned the women about what they were doing along the airport runway fence. Officer Basi Siba spoke with the plaintiffs, while Officer Ludig Nithan remained with the police vehicle. According to plaintiffs, there was no problem and the encounter ended without incident. The officers then left the scene.
On or about May 24, 2014, the plaintiffs became aware of allegedly defamatory statements made about them by the defendant police officers and filed the underlying civil suit.
(b) Procedural Activity
This matter was before the trial court for approximately 20 months. The case remained on the court's docket this long primarily due to the number of continuances: five were granted – three by the trial court sua sponte and two at the parties' request.
The complaint was filed on June 17, 2014. The defendants filed their answer on August 13, 2014, after being granted a thirty-day enlargement of time. The plaintiffs moved for entry of default on August 25, 2014, which the trial court denied.
The plaintiffs deposed three witnesses during September 2014. The defendants filed discovery requests on September 22, 2014. On October 28, 2014, the plaintiffs filed Answers to defendants' Request for Admissions but did not respond to defendants' Interrogatories or Requests for Production of Documents.
The case was referred to the Kosrae Mediation Program. Mediators were selected and the matter submitted for a mediation date. On April 17, 2015, plaintiffs' counsel contacted the court regarding a mediation date and was informed that due to delay, mediation was suspended.
(c) First Continuance (by court's own motion)
The first Notice of Trial was issued on August 26, 2014. The court continued the matter on its own motion on September 16, 2014 to allow time for discovery and for the parties to attempt mediation.
(d) Second Continuance (parties' stipulated motion)
The second Notice of Hearing was issued on June 17, 2015. The court granted a continuance on June 30, 2015 based on the parties' stipulated motion to continue trial.
(e) Third Continuance (by court's own motion)
The third Notice of Trial issued on October 15, 2015. The court continued the matter on its own motion by order entered November 2, 2015.
(f) Fourth Continuance (by court's own motion)
The fourth Notice of Trial issued on November 13, 2015. The court continued the matter on its own motion by order entered November 16, 2015.
(g) Fifth Continuance (parties' stipulated motion)
The fifth Notice of Trial issued on November 18, 2015. The court granted a continuance on November 23, 2015, based on the parties' stipulated motion to continue trial.
(h) Sixth Continuance Motion (plaintiffs' motion)
The sixth Notice of Hearing, issued on January 18, 2016, set trial on January 27, 2016. The plaintiffs filed their Motion to Continue Trial on January 26, 2016. The court entered its Order of Dismissal on February 1, 2016, finding that the plaintiffs failed to prosecute the matter, as the motion to continue was frivolous and lacked fourteen days' notice, the case had been through too many
continuances, and counsel did not appear for trial.
(i) Reconsideration Motion (by plaintiffs' motion)
The plaintiffs filed their Motion to Reconsider Order of Dismissal on February 12, 2016. The court issued a Notice of Hearing on February 23, 2016. The court entered its Order Denying Motion for Reconsideration on March 2, 2016, citing Kosrae Rules of Civil Procedure Rule 6(d) regarding service of Notice of Motion fourteen-days before hearing.
The appellants frame the issues presented on appeal as the Kosrae State Court orders of February 1, 2016 and March 2, 2016 "are erroneous and contrary to law." This statement of the issues is too general to be meaningful. A "statement of issues" should tell the court the question or questions raised. HENRY WEIHOFEN, LEGAL WRITING STYLE 246 (2d ed. 1980). The statement of issues "must be specific. They must not be so general as to be meaningless." Id. at 247.
In every appellate case the ultimate question is whether the judgment of the court below should be affirmed or reversed, whether it was supported by the evidence or whether the lower court committed prejudicial error. Stating the issues in such general terms, therefore, tells the court essentially nothing about the particular questions in the case.
Id. Appellate Rule 28(a)(2) requires a statement of issues in the brief. It "'does not, one should assume, ask an advocate to do an idle act. The statement of issues is there for a purpose.'" Setik v. Perman, 22 FSM R. 105, 113 (App. 2018) (quoting ERIC J. MAGNUSON & DAVID F. HERR, FEDERAL APPEALS § 9:10, at 501 (2016 ed.)).
Our review of the briefs and the record, thus leads us to recast the issues on appeal as:
A. Did the trial court's review of the record support its conclusion that the plaintiffs failed to timely prosecute the matter?
B. Did the plaintiffs' counsel provide adequate medical excuse justifying absence from the trial?
C. Should the plaintiffs' motion to continue have been granted due to short notice and extenuating circumstances?
D. Did the trial court abuse its discretion by relying on the fourteen-day rule to deny an enlargement?
(1) February 1, 2016 Order of Dismissal
(a) Standard of Review
Generally, involuntary dismissals under Civil Rule 41(b) are reviewed for abuse of discretion, with adjudication dependent on whether the circumstances surrounding the delay justify dismissal. Kosrae Island Credit Union v. Palik, 10 FSM R. 134, 137-38 (App. 2001). An abuse of discretion occurs when (1) the court's decision is clearly unreasonable, arbitrary, or fanciful; (2) the decision is based on an
erroneous conclusion of law; (3) the court's findings are clearly erroneous; or (4) the record contains no evidence on which the court rationally could have based its decision. Arthur v. FSM Dev. Bank, 16 FSM R. 653, 657-58 (App. 2009). Such abuses must be unusual and exceptional; an appellate court will not merely substitute its judgment for that of the trial court. Simina v. Kimeou, 16 FSM R. 616, 619 (App. 2009).
Plaintiffs additionally maintain that the trial court's decisions were not supported by substantial evidence. When reviewing a trial court's Rule 41(b) dismissal on sufficiency of the evidence, the appropriate standard of review is whether the findings of fact are clearly erroneous. Kosrae Island Credit Union, 10 FSM R. at 138.
A finding is clearly erroneous and reversible error if: (1) the findings are not supported by substantial evidence in the record; (2) the finding was the result of an erroneous conception of the applicable law; or (3) after reviewing the entire body of the evidence in the light most favorable to the appellee, the reviewing court is left with a definite and firm conviction that a mistake has been made. Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion, and it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Palsis v. Kosrae, 17 FSM R. 236, 243 (App. 2010).
When an appellant takes issue with both the trial court's findings of fact and its subsequent dismissal order, it requires a two-tier analysis. The appellate court first reviews the trial court's findings of fact for clear error. Thereafter, it applies the facts found that are not clearly erroneous, together with those shown by the record as undisputed, and reviews the Rule 41(b) dismissal order under an abuse of discretion standard. Kosrae Island Credit Union, 10 FSM R. at 138.
(b) Substantial Evidence
We hold that the trial court's conclusions are not supported by the facts of record. The court found that plaintiffs' case had had too many continuances already and thus should be dismissed for failure of prosecution. This finding is clearly erroneous.
The record shows there were six trial continuances. The trial court was responsible for three of the six: September 16, 2014, October 15, 2015, and November 16, 2015. Two continuances resulted from the parties' stipulated motions: June 30, 2015 and November 20, 2015. The only time the plaintiffs alone sought a continuance was in their January 26, 2016 Motion to Continue trial.1
The court found that plaintiffs' counsel failed to provide sufficient verification of her illness. It held, "This Court has considered plaintiff's reason frivolous because there was no showing of any evidence to her illnesses." This finding is based on an erroneous conception of the law.
Counsel argued that her declaration in support of the motion should be sufficient:
[D]ue to poor health condition, undersigned . . . must to request for continuance of the trial date. That on Wednesday, January 13, 2016, undersigned hurt her left harm [sic] and left shoulder while at work, and that at the time of this writing, undersigned left arm is still in an arm sling and physical movement is limited.
Mot. to Continue Trial at 2; Appellants' Appendix at 53.
The trial court fails to state why counsel's declaration is insufficient to provide evidence of her illness. It is presumptively valid, as set forth in Kosrae Rule of Civil Procedure, Rule 11, as amended by Kosrae GCO 2002-5. This rule states in pertinent part that
"[t]he signature of an attorney or trial counselor constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith . . . . "
Heirs of Tulenkun v. Simon, 16 FSM R. 636, 642 (Kos. S. Ct. Tr. 2009) (quoting Kos. GCO 2002-5).
The trial court ruled that the matter should be dismissed because plaintiffs failed to file and serve their written motion and notice of motion to continue the hearing 14 days before the time specified for hearing. That court is mistaken.
It was factually impossible for plaintiffs to file and serve their Motion to Continue Trial 14 days before trial. On January 18, 2018, the trial court issued its notice setting the trial date. Accordingly, the parties had only nine days advance notice of the January 27, 2016 trial date.
Based on the record, the trial court's findings of fact are clearly erroneous and do not support its order dismissing the case.
We turn now to the court's exercise of discretion in dismissing the case.
(c) Abuse of Discretion
The law does not favor involuntary dismissal. The court in McGillvray v. Bank of the FSM, 7 FSM R. 19, 23 (Pon. 1995) ruled that dismissal under Rule 41(b) should be allowed only when there is a "clear record of delay or contumacious conduct by the plaintiff" or "upon a serious showing of willful default." An example of such conduct is noted in Damarlane v. United States, 8 FSM R. 45, 59 (App. 1997):
Plaintiffs' counsel repeatedly ignored Court orders directing her to limit her filings only to claims and/or issues that had not already been adjudicated. Her repetitive filings caused unnecessary expense and delay in bringing this action to conclusion, as the parties were forced to repeatedly review and rebrief arguments on which the Court had already ruled.
The court in Kosrae Island Credit Union set forth the analysis:
Rule 41(b) appears to contemplate a reasonable diligence standard. That is to say a plaintiff in a civil lawsuit seeking affirmative relief has the burden of pursuing that relief with reasonable diligence. Initially, the burden of showing some excuse for any delay in prosecution ought to be borne by the plaintiff. If the excuse is anything but frivolous, the burden shifts to the defendant to show prejudice from the delay. If prejudice is demonstrated, the burden shifts back to the plaintiff to show that the force of its excuse outweighs any prejudice to the defendant. In making this analysis, granting or denial of involuntary dismissal ultimately rests in the sound discretion of the court. Nevertheless, the record must still support a finding of delay attributable to plaintiff's conduct.
Kosrae Island Credit Union, 10 FSM R. at 140.
Here, plaintiffs' counsel stated in her Motion to Continue the January 26, 2018 trial that she injured her arm and that this would prevent her from competently representing her clients at trial. When the motion was filed, defendants' counsel acquiesced to the continuance request. Implicit in defense counsel's assent is an acknowledgment that the prejudice did not outweigh the burden of a continuance.
On appeal, defense counsel takes a sharply different tack and argues vigorously in favor of the dismissal of plaintiffs' case for failure to prosecute the matter. Defendants assert that their interests were prejudiced because, "plaintiffs continuously failed to obey order of the court regarding discovery." That, however, is not a ground the trial court considered or used as a basis of its dismissal. Defendants contend that plaintiffs are disingenuous in claiming that they, "had every intention to prosecute their case," because they waited until one day before the time noticed for trial to move the court for a continuance.
The plaintiffs must rebut prejudice demonstrated by the defendants; however, there does not seem to be any in this case. According to the record, there was an approximately two-month delay from the last action on the record to the date the plaintiffs' Motion to Continue Trial was filed on January 26, 2016. (The matter was delayed from November 23, 2015, when an Order Granting a Stipulated Motion to Continue the Trial was issued, to January 18, 2016, when the last Notice of Hearing was issued.)
As noted above, the plaintiffs are not solely responsible for the delays in this matter. All of the continuances that were granted are attributable to either the court, acting on its own, or the parties' mutual agreement. The defendants did not file a motion to compel for plaintiffs alleged failure(s) to respond to discovery. The record contains no contempt citations against plaintiffs for failure to appear for hearing. There are no indications that plaintiffs engaged in a pattern of repetitive filings or of repeatedly ignoring court orders. That, however, is not a ground the trial court considered or used as a basis of its dismissal.
(d) Cause Shown
The trial court's denial of the plaintiffs' Motion to Continue appears to be based on an erroneous interpretation of the "cause shown" standard.
Plaintiffs submitted their Motion to Continue under Kosrae Rule of Civil Procedure 6(b), which provides that enlargement motions may be granted for "cause shown":
Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specific time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. . . .
The trial court analyzed plaintiffs' motion under Kosrae Civil Rule 6(d),2 which provides, in pertinent part, that, absent ex parte relief, 14 days' notice is required:
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served, with a memorandum of points and authorities, not later than 14 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application.
Under both Rules 6(b) and 6(d), relief may be granted for "cause shown." The Rule 6(b)(1) "cause shown" standard is a lower standard than the "good case shown" standard. People of Eauripik ex rel. Sarongelfeg v. F/V Teraka No. 168, 18 FSM R. 461, 466 (Yap 2012). "Good cause" is a legally sufficient reason. It is a burden placed on the litigant, usually by court rule or order, to show why a request should be granted. Heirs of Benjamin v. Heirs of Benjamin, 17 FSM R. 621, 627 (App. 2011).
A motion for enlargement can (1) be granted at any time, and (2) if made before the time period has expired, can be granted without notice – that is, ex parte. Alik v. Heirs of Alik, 21 FSM. R. 606, 617 (App. 2018).
FSM courts have held that for court to grant an enlargement under Rule 6(b)(1) for cause shown, "a party must demonstrate some justification for the issuance of the enlargement order. However, an application for the enlargement of time under Rule 6(b)(1) will normally be granted in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse party." F/V Teraka No. 168, 18 FSM R. at 466 n.4.
In this matter, we can find no bad faith in plaintiffs' counsel's request for an enlargement of time for trial based on injury to her arm. Her failure to provide documentary evidence of her injury does not demonstrate bad faith. Accordingly, under the "cause shown" standard, the grant of an enlargement was warranted.
On this record, it cannot be said that plaintiffs have engaged in a pattern of delay that would warrant dismissal of their action under the McGillvray standard.
It was an error of law for the trial court to apply the fourteen-day rule; it was a clearly erroneous finding of fact that the previous delays were all, or were mostly attributable to the plaintiffs; and it was therefore an abuse of the trial court's discretion not to grant the enlargement under the "cause shown" standard.
(2) March 2, 2016 Motion for Reconsideration
We will not address plaintiffs' Motion for Reconsideration. It is now moot, as we have vacated the trial court's Order of Dismissal.
Based on the foregoing we reverse the trial court's January 27, 2016 dismissal of Civil Action No. 51-14, vacate its denial of the motion for reconsideration, and remand the matter to the trial court
with instructions for it to reinstate the matter on its trial calendar for further proceedings consistent with our opinion. Costs may be taxed against the appellees.
_____________________________________Footnotes:
1 The trial court was aware, according to its recitation of the facts, that the defendants were willing to consent to plaintiffs' January 26, 2016 motion to continue.
2 The court's Order of Dismissal cites Kosrae Rule of Civil Procedure 6(c), which is "vacant" and contains no text. From context, it is assumed the trial court was referring to Kosrae Civil Rule 6(d).
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