THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nakamura v. Bank of Guam (I),
6 FSM Intrm. 224 (App. 1993)

[6 FSM Intrm. 224]
JACK NAKAMURA,
Appellant,

vs.

BANK OF GUAM,
Appellee.

APPEAL CASE NO. C2-1993

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided:  October 12, 1993

APPEARANCES:
For the Appellant:     Tom Schweiger, Esq.
                                   Directing Attorney
                                   Micronesian Legal Services Corporation
                                   P.O. Box D
                                   Weno, Chuuk FM  96942

For the Appellee:     Anita Arriola, Esq.
                                   Arriola, Cowan & Bordallo
                                   P.O. Box X
                                   Agaa, Guam 96910

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HEADNOTES
Appeal and Certiorari ) Briefs and Record
     It is within the court's discretion to dismiss an appeal where the appellant has failed to file a brief within the time prescribed when the appellee has moved for dismissal.  In deciding a motion to dismiss an appeal under FSM Appellate Rule 31(c), the court may consider, among other things, the length of delay in filing briefs; nature of the reason for any filing delay; evidence of prejudice to the opposing party; and extent of the delaying party's efforts to correct procedural defects.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 227 (App. 1993).

Appeal and Certiorari ) Briefs and Record
     Prejudice to an appellee may be shown by failure of an appellant to file a notice of issues presented and contents of the appendix as required under FSM Appellate Rule 30(b).  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 227 (App. 1993).

[6 FSM Intrm. 225]

Appeal and Certiorari ) Briefs and Record
     The service on opposing counsel of a signed and dated copy of a brief filed with the appellate division, although not explicitly stated in FSM Appellate Rule 31(d), is a procedural requirement of the FSM Supreme Court.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Appeal and Certiorari ) Briefs and Record
     The requirement under FSM Appellate Rule 30(a) of an appendix is only waived at the court's discretion and by court order.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Appeal and Certiorari ) Briefs and Record
     Parties to an appeal must reference properly and clearly in their briefs the parts of the record containing material in support of their arguments, and unless the court has waived an appendix under Appellate Rule 30(f), references should be to the appropriate pages of the appendix.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Appeal and Certiorari ) Briefs and Record
     Facts asserted to excuse the filing of an appellate brief within the time prescribed must be proved.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Attorney, Trial Counselor and Client ) Sanctions
     In light of the court's policy for adjudicating matters on the merits the court may sanction counsel for initial noncompliance with the procedural rules rather than dismissing his client's case.  Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 229 (App. 1993).

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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     The appellee in this case has filed a motion to dismiss the appeal and a motion to strike the reply brief on grounds of appellant's failure to comply with the FSM Rules of Appellate Procedure.   FSM Appellate Rule 27(c) confers authority on a single justice of the Supreme Court appellate division to grant or deny requests for relief brought by proper motion under the rules.  A single justice may not dismiss an appeal, "except upon stipulation of all parties, or upon failure of a party to comply with the timing requirements of these rules."  Since it appears that appellant has violated several provisions of the appellate rules, including the timing provisions, I will act on the motions as a single justice.  The appeal is not dismissed at this time and the motion to strike the reply brief is denied. However, the Court gives notice herein of its intention to assess a penalty of $300 against appellant's counsel.  This notice issues pursuant to FSM Appellate Rule 46(c).
 
MEMORANDUM
I.  FACTS
     The appellant filed a notice of appeal from judgment of the trial court on February 5, 1993.  The Clerk of the FSM Supreme Court appellate division issued a Record Ready Certificate on May 27, 1993, indicating that appellant's brief plus three copies were due in the Clerk's office by July

[6 FSM Intrm. 226]

12, 1993.  On June 22, 1993, appellee's counsel mailed appellant's counsel a letter requesting appellant's designation of the record for inclusion in the appendix and the statement of issues as required by FSM Appellate Rule 30(b). Appellant did not provide the items requested.

     Sometime in July appellee's counsel received an unsigned and undated copy of appellant's brief and a copy of the appendix.  As of July 16, 1993, the Clerk of the appellate division had received only the original brief and two copies, with no appendix attached.  The Clerk informed Mr. Tom Schweiger, counsel for appellant, by telephone on July 16 and by letter dated July 22 that the brief could not be accepted for filing because only two rather than the required three copies had been sent, and the Court had not received any copies of the appendix.

     On August 9, 1993, the appellee filed a motion to dismiss the appeal under FSM Appellate Rule 31(c).  On August 11, the Clerk of Court informed Mr. Schweiger by letter that although the Court had received the missing copy of the brief and the appendices on August 9, the brief could still not be accepted for filing because appellant had not filed the appropriate motion for extension of time to file the briefs.  Appellant's counsel filed said motion on August 30, 1993.

     On September 6, 1993 appellant filed a reply brief in response to appellee's brief, which had been filed on August 2.  On September 22, 1993 appellee moved to strike the appellant's reply brief as late filed.  Appellant filed a response to the motion to strike and a motion for extension of time to file the reply brief on September 27, 1993.

II.  VIOLATIONS OF APPELLATE RULES
     The appellant does not dispute that he committed the following errors:

     (1)     failure to file the proper number of briefs pursuant to FSM Appellate Rule 31(b);

     (2)     failure to file an appendix pursuant to FSM Appellate Rule 30;

     (3)     failure to designate parts of the record to be included in the appendix, and to serve a statement of issues on the appellee as required by FSM Appellate Rule 30; and

     (4)     failure to file appellant's reply brief within the time prescribed by FSM Appellate Rule 31(a).

     In addition, appellant admits that he served an unsigned copy of the brief on appellee, but contends that this was not a violation of FSM Appellate Rule 31(d). He denies appellee's allegation that he made inaccurate or improper references to the record in violation of FSM Appellate Rules 28(a)(3) and 28(e).  He further denies that appellee has been prejudiced by any alleged or actual errors, since appellee's counsel did receive her copy of appellant's brief and appendix in July and was able to file appellee's brief on time according to the rules.

     Appellant does not respond to appellee's charge that he failed to comply with FSM Appellate Rule 30(a) in failing to include the Notice of Appeal and Answer to the Complaint in the appendix.

     Appellant offers the following excuses for the alleged errors noted above:

     (a)     that an attempt was made after appellee's June 22 letter to notify appellee's
 
[6 FSM Intrm. 227]
 
               counsel by phone of the parts of the record to be included in the appendix, but appellee did not follow up the phone call and MLSC's fax machine in Chuuk was not working;
 
     (b)     that he mailed the correct number of briefs and appendices to the Clerk of the appellate division on July 9, 1993, but that one envelope was lost in the mail;
     (c)     that he corrected the problem when informed by the Clerk by mailing another copy of the brief and the appendices;

     (d)     that the delay of almost a month after notice by the Clerk of the insufficiency of appellant's filings in correcting the defect was due to a copier machine breakdown in the Chuuk MLSC office;

     (e)     that appellant's counsel did not receive a copy of appellee's brief until August 23, 1993, and so was unable to file a reply brief by the date prescribed by the rules.  Adding to the delay was the supposed interruption of mail services resulting from an earthquake in Guam in August, and further mechanical difficulties with office machinery in the Chuuk MLSC office;

     (f)     that an appendix is not an essential element of appellate pleadings and merely serves as a convenient guide to the appellate panel;

     (g)     that the appellate rules do not require service of a signed, dated copy of appellant's brief on opposing counsel; and

     (h)     that any defects in references to the record contained in appellant's brief are curable through argument in appellee's brief and through the Court's own review of the record.

     We catalog the procedural errors and excuses offered in explanation in order to correct several prominent omissions and misconceptions of appellant's counsel in this matter.

III.  ANALYSIS
     The procedural duties of an appellant under the appellate rules in preparing and filing briefs are straightforward.  The failure to file a brief within the time prescribed by FSM Appellate Rule 31(a) entitles the appellee to move for dismissal of the appeal.  FSM App. R. 31(c).  It is within the court's discretion whether to dismiss for late filing.  Among the factors which the court considers on a motion to dismiss under Rule 31(c) is the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason for appellant's failure to file on time; and extent of appellant's efforts in mitigation.  See Kephas v. Kosrae, 3 FSM Intrm. 248 (App. 1987); Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982); Yee v. Okamoto, 352 P.2d 854, 856 (Haw. 1960).

     In the present case, the Court does not agree with appellant's assertion that appellee has not been prejudiced by the filing delinquencies.  By not filing a notice of issues to be presented and contents of the appendix, appellee was forced to wait until receipt of appellant's brief to begin preparing a defense to the appeal.  FSM Appellate Rule 30(b) states in unequivocal terms the appellant's responsibility in this regard even absent agreement of the parties:

[6 FSM Intrm. 228]

     appellant shall, not later than 10 days after the date of notice by the clerk of the appellate division . . . that the record is ready, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review.

Appellant served no such designation or statement on appellee.

     Furthermore, appellee was prejudiced by appellant's service of an unsigned and unfiled copy of the brief.  Appellant is admonished that while service of unsigned pleadings on opposing counsel may be "common practice" in other jurisdictions, it is not acceptable in this jurisdiction.  Particularly in cases such as this one where the parties are quite geographically distant from each other, it is vitally important to know when a particular pleading was filed.  Service of an unsigned pleading on counsel is not condoned by FSM Appellate Rule 31(d) by omission; the fact that the rule states that all briefs filed with the appellate division must be signed does not mean copies of the same pleadings served directly on opposing counsel do not require a signature, date and signed certificate of service.  An attorney receiving an unsigned and undated pleading is forced to contact either the court or opposing counsel to verify the authenticity of the copy and the date of filing in order to determine the deadline for counsel's response.

     Counsel for appellant seems to dismiss the importance of an appendix.  The Court instructs counsel that an appendix is an essential element of an appellant's brief and the requirement that it be included is not waiveable by appellant.  Only in limited circumstances at the court's discretion and by court order may the requirements of Appellate Rule 30(a) be waived.  FSM App. R. 30(f).

     Equally as important as the provision of an appendix to both the appellate panel and appellee's counsel is the proper referencing to the record in appellant's brief.  Clear identification of parts of the record containing matter that forms the basis for appellant's argument is the responsibility of the brief writer, as the Court is not required to search the record for error.  Holt v. Sarver, 442 F.2d 304, 307 (8th Cir. 1971).  Unless the Court waives an appendix by invoking FSM Appellate Rule 30(f), proper references are to the appropriate appendix pages. The result of unclear or improper references may be a decision that the appellant has not met the burden of demonstrating error.  9 James W. Moore et al., Moore's Federal Practice 228.02[4] (2d ed. 1990).  This includes identification of alleged errors by the trial court in admitting evidence; references must be made to the objections raised and rulings thereon at trial or else the appellate court cannot review the issue of admissibility.

     Finally, the Court is troubled by the lack of proof offered by appellant in support of his contentions regarding technical and mailing difficulties encountered in filing his opening brief and reply brief.  Appellant's counsel has provided no other affidavits regarding office machinery problems and Kosrae MLSC's participation in filing the reply brief, and no copies of receipts of mailing or postmarks regarding any of the pleadings in question.  Normally, the Court requires that "the facts asserted to excuse filing of the brief within the time prescribed must be proved."  5 C.J.S. Appeal & Error 1340, at 380 (1958).  In this matter the Court has only counsel's sworn affidavits and filed replies to appellee's motions.  Were it not for the fact that counsel did manage to effect some portion of service of the briefs on time, the lack of corroborating proof would leave us no choice but to dismiss the appeal.

     The Court also notes that counsel for the appellant had to be instructed by the Clerk of the appellate division to file a motion for extension of time in order to correct the defects in filing.  The motion was not filed until 19 days after the Clerk's notification.  The appellant's motion for

[6 FSM Intrm. 229]

extension of time to file the reply brief was not filed until 34 days past the original due date of the brief and 21 days after the brief was actually submitted for filing. Mechanical problems with office machinery do not excuse an attorney from notifying this Court and opposing counsel promptly of the need for an enlargement of time within which to file a brief.  The motions for extension of time will be granted to allow appellant to file his opening brief and reply brief, only because these briefs have in fact already been submitted to the Court and appellee, and because the Court will attribute the lapse in following Appellate Rule 26(b) in a timely manner to Mr. Schweiger's pronounced unfamiliarity with the appellate rules.

     The prejudicial effect of appellant's errors in this matter is significant, and not limited to the appellee.  The Court has already expended considerable effort in attempting to enforce appellant's compliance with the Appellate Rules.  The Court should not have to instruct attorneys that the Rules of Court mean what they say.  An attorney practicing before this Court is expected to know the rules and abide by them.  The Court is convinced that Mr. Schweiger's conduct in this case is deficient in both respects.  His lack of procedural compliance has hindered the proper presentation of issues on appeal.  In view of this Court's preference for adjudicating matters on the merits, the Court will not dismiss the appeal.  See Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993); Truk Transport Co. v. Trans Pacific Import, Ltd., 3 FSM Intrm. 440, 443 (Truk 1988); Lonno v. Trust Territory (III), 1 FSM Intrm. 279, 281 (Kos. 1983).  Appellant's counsel should be aware, however, that he has come perilously close to having his client's case dismissed. As a punitive measure we deem it proper to sanction Mr. Schweiger in the amount of $300.  Pursuant to FSM Appellate Rule 46(c), we will allow Mr. Schweiger an opportunity to respond to the Court's intended sanction.  Counsel for appellant will have until October 29, 1993 to file a written response.  The Court will require proof of mailing no later than October 29, 1993.

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