THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Nena v. Kosrae (III) ,
6 FSM Intrm. 564 (App. 1994)

[6 FSM Intrm. 564]

EZRA NENA,
Appellant,

vs.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO. K2-1990

ORDER

Decided:  October 31, 1994

BEFORE:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court
     Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

     * Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:
For the Appellant:     Charles Greenfield, Esq.
                                    Micronesian Legal Services Corporation
                                    P.O. Box 38
                                    Lelu, Kosrae FM 96944
 
For the Appellee:      Tim Stumpff, Esq.
                                    Assistant Attorney General
                                    Kosrae Attorney General's Office
                                    P.O. Box AG
                                    Lelu, Kosrae FM 96944

*    *    *    *

[6 FSM Intrm. 565]

HEADNOTES
Evidence ) Judicial Notice
     A court may take judicial notice at any stage of the proceedings including during a petition for rehearing on the appellate level.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 566 (App. 1994).

Appeal and Certiorari
     For good cause shown, an appellate court may grant an enlargement of time for any act, except notice of appeal or times set by statute in administrative appeals, including a petition for rehearing.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

Judgment ) Relief from Judgment
     Failure of counsel to exercise due diligence in searching for "newly discovered" evidence is sufficient and independent ground for denial of a motion for relief from judgment under FSM Civil Rule 60(b)(2).  Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

Appeal and Certiorari ) Rehearing
     A motion for reconsideration of denial of rehearing will be considered as a second petition for rehearing, and as such it cannot be granted it unless the court has overlooked or misapprehended points of law or fact.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

Appeal and Certiorari ) Rehearing
     A court has the power to enlarge the time to petition for rehearing and to modify an erroneous decision although the time for rehearing has expired, and sometimes may consider petitions for rehearing filed even after rehearing has been denied.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 567-68 (App. 1994).

Constitutional Law ) Interpretation
     A litigant, in order to make arguments based on the legislative history of the constitutional provision, must first show the ambiguity in the constitutional provision.  Only if the constitutional language is unclear or ambiguous can a court proceed to consult the constitutional convention journals and the historical background.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 568 (App. 1994).

Constitutional Law ) Indefinite Land Use Agreements; Property ) Easements
     A grant of a permanent or perpetual easement is definite in the same sense that a grant of a fee simple estate is definite ) it is a permanent transfer of an interest in land.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 568 (App. 1994).

Costs
     When a judgment is affirmed on appeal, costs are usually taxable against the appellant if the appellee timely files its bill of costs with the appellate division.  A bill of costs for trial transcripts must be filed in trial court appealed from.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 568-69 (App. 1994).

Costs
     The filing of a petition for rehearing does not automatically extend the time for filing a bill of costs or for opposing a timely filed bill of costs, to a period beyond the ruling on the petition for rehearing.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 569 n.5 (App. 1994).

Costs
     Taxation of costs is not an additional award for the prevailing party.  It is a reimbursement

[6 FSM Intrm. 566]

to the prevailing party of actual expenses (costs) incurred.  A motion for taxation of costs must be denied if it fails to adequately verify appellee's actual costs.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 569-70 (App. 1994).

Costs
     The provision that the cost of printing or otherwise producing necessary copies of briefs, appendices or copies of the record shall be taxable in the Supreme Court appellate division at rates not higher than those generally charged for such work in the area where the clerk's office is located, does not set the amount to be awarded; it sets a cap or upper limit on the actual costs incurred that can be reimbursed.  Nena v. Kosrae (III), 6 FSM Intrm. 564, 569-70 (App. 1994).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On June 29, 1994, we denied the appellant's petition for rehearing in this matter.  On August 2, 1994, the appellant filed a Motion for Reconsideration of Denial of Rehearing and a Request to Take Judicial Notice, along with supporting memorandum and affidavits.  The appellee, State of Kosrae, filed an opposition, and the appellant has replied.  Also pending before us is the appellee's Bill of Costs, filed December 14, 1993.

I.
     The appellant has furnished us with certified copies of five Trust Territory indefinite land use agreements, all dated in 1956 and executed in Truk District, from the files in the custody of the Chuuk State Supreme Court.  He asks that we take judicial notice of these.  The appellant contends that these instruments represent the type of transaction that article XIII, section 5 of the FSM Constitution was intended to prohibit.  He further contends that since these instruments contain both the words "perpetual" and "indefinite" our holding of November 25, 1993, that the easement that the appellant granted the State was perpetual and therefore not indefinite must be in error and ought to be reversed.

     We are satisfied that we may take judicial notice at any stage of the proceedings.  Welson v. FSM, 5 FSM Intrm. 281, 284 (App. 1992) (construing FSM Evid. R. 201(f)).  We will therefore take judicial notice of these instruments, and for the purposes of this motion we will assume that these Trust Territory instruments represent the evil which article XIII, section 5 was intended to remedy.

II.
     Appellant moves that we apply the principles of FSM Civil Rule 60(b)(2) and allow relief from our judgment for newly discovered evidence which by due diligence could not have been discovered earlier.  Appellant's counsel asserts that he exercised due diligence in bringing these Trust Territory agreements to our attention.  His affidavit states that in the seven days between when he received our November 25, 1994 opinion and the expiration of the fourteen day period in which to petition for a rehearing he could not locate a copy of a Trust Territory indefinite term lease on Kosrae.  It further states that just after he received our June 22, 1994 denial of the appellant's petition for rehearing he learned that the Chuuk office of Micronesian Legal Services Corporation had copies of some Trust Territory indefinite term leases, and that in the following two weeks he

[6 FSM Intrm. 567]

obtained the certified copies that are attached to the motion now before us.

     Even if we may apply (which we do not decide) the policy underlying Civil Rule 60(b)(2) to appellate division proceedings we are not satisfied that appellant's counsel has exercised the necessary due diligence.  The constitutionality of Ezra Nena's grant of an easement to the State of Kosrae was at issue at least since the notice of appeal was filed based, in part, on the alleged applicability of article XIII, section 5.  No effort was made to provide the court with a copy of any Trust Territory indefinite term lease before either of the two oral arguments in this matter before the appellate division.  The issue of whether the grant was perpetual and therefore not indefinite was raised from the bench at the second oral argument.  No effort was made to supply supplemental authorities to the point argued orally, as permitted by FSM Appellate Rule 28(j), in the lengthy time between argument and decision.

     Even if the contents of a Trust Territory indefinite term lease could fairly be said to be at issue only after we rendered our opinion on November 25, 1993, we still are not satisfied that appellant's counsel has exercised due diligence in discovering the evidence.  Counsel, by his own admission, searched for only seven days on the island of Kosrae for a copy.  He did not move for an enlargement of time within which to file the petition for rehearing.  See FSM App. R. 26(b) (for good cause shown, appellate court may grant enlargement of time for any act except notice of appeal or times set by statute in administrative appeals); FSM App. R. 40(a) ("A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order."). Nor did he continue looking, after having filed the petition, in order to file supplemental authorities.  Evidently, he was satisfied with the petition as submitted.  Only after our denial of the petition did he resume the search he had earlier abandoned.  It took him only one day.  He located a copy in the records of his own law firm, albeit another office.1  Only then did he set about obtaining certified copies of public records for submission with the present motion.

     This lack of due diligence is a sufficient and independent ground for denial of the motion now before us.  Petitioner's motion is defeated by the very rule, FSM Civ. R. 60(b)(2), that he relies upon.

III.
     Although the present motion is styled "Motion for Reconsideration of Denial of Rehearing" we consider it as a second petition for rehearing.  As such it is governed by Appellate Rule 40, and we cannot grant it unless we have overlooked or misapprehended points of law or fact.

     Appellee argues that since this is another petition for rehearing it ought to have been filed within 14 days after our previous denial; therefore since it is filed out of time, it should be denied on that ground.  This contention has merit. However, under Appellate Rules 26(b) and 40,2 a court has "the power to enlarge the time to petition for rehearing and to modify an erroneous decision although the time for rehearing may have expired."  Braniff Airways, Inc. v. Curtiss-Wright Corp.,

[6 FSM Intrm. 568]

424 F.2d 427, 429 (2d Cir.) (citations omitted), cert. denied, 400 U.S. 829 (1970).  See also United States v. Certain Land, 420 F.2d 370, 371 (2d Cir. 1969) (court treated motion to delete award of costs as petition for rehearing filed out of time and granted it).  Certainly, as long as a case is sub judice (under judicial consideration), a court "may consider petitions [for rehearing] filed after rehearing has been denied, and even after the time for rehearing has passed." Braniff Airways, 424 F.2d at 429.  It may be argued that this case was still sub judice because there was still a motion for a bill of costs pending before us. Nevertheless, we may grant an enlargement of time to file a petition for rehearing before considering it.

     Therefore, because of the importance of the constitutional issue and our desire not to penalize the appellant for his counsel's lack of diligence, we will consider the issue.

IV.
     Appellant directs our attention to the phrase "owner hereby gives to the Government a perpetual right to full use of the premises" contained in the Trust Territory indefinite lease agreement.  This phrase coupled with the earlier phrase, "WHEREAS, the premises . . . will be used by the Government for an indefinite period" leads the appellant to conclude that a perpetual use right is an indefinite land use agreement prohibited by the Constitution.  He contends that the Statement of Intent signed by the appellant and the State is similar in all material respects.

     As appears in our opinion entered November, 1993 we held that a perpetual grant of an easement was not for an indefinite period, and thus was not within the prohibition of article XIII, section 5.  We did not reach this holding by examining the history of the constitutional convention.  The petitioner, in order to make his arguments based on the legislative history of the constitutional provision, must first show us the ambiguity in the constitutional provision.  Only if the constitutional language is unclear or ambiguous can we proceed to consult the constitutional convention journals and the historical background.  See Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994); Tammow v. FSM, 2 FSM Intrm. 53, 57, 59 (App. 1985); FSM v. Jonathan, 2 FSM Intrm. 189, 193 (Kos. 1986); FSM v. Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982).  The petitioner has not argued the constitutional provision's clarity or ambiguity.  Mere disagreement with us over the meaning of a word (here, "indefinite") in a constitutional provision is not enough to warrant a rehearing.

     In his current contention appellant has ignored our statement in the denial of his (first) petition for rehearing that the easement here was of permanent duration and that a "grant of a permanent easement is for as definite a term as a grant of a fee simple estate."  Nena v. Kosrae (II), 6 FSM Intrm. 437, 439 (App. 1994). "[A]n easement may be created for a permanent or perpetual duration, or, as it is sometimes stated by the courts, in fee . . . ."  D.A. Norrris, Annotation, Commencement and Duration of Express Easement as Affected by Provision in Instrument Creating It,  A.L.R. 5, 12 (1945).  "The possible duration of . . . an easement . . . is either in theory perpetual, in analogy to an estate in fee simple in land, or it is created to endure for the period of one of the lesser estates in land, as for instance an easement for life or for years."  1 Herbert T. Tiffany, The Law of Real Property 23, at 33 (Basil James, ed., 3d ed. 1939).  A grant of a permanent or perpetual easement is definite in the same sense that a grant of a fee simple estate is definite ) it is a permanent transfer of an interest in land. Therefore our earlier holding did not overlook or misapprehend points of law or fact, and the appellant's (second) petition for rehearing must be denied.

V.  COSTS
     When a judgment is affirmed on appeal costs are usually taxable against the appellant.  FSM

[6 FSM Intrm. 569]

App. R. 39(a).  After we affirmed the trial division in this matter, Nena v. Kosrae (I), 6 FSM Intrm. 251 (App. 1993), the appellee, the State of Kosrae, timely filed its bills of costs.  See FSM App. R. 39(d) (verified bill of costs to be filed with the clerk within 14 days of entry of judgment).  Appellee is seeking the costs of the reporter's transcripts of the trial below and costs for producing the necessary copies of the appellee's briefs and motions.  Pursuant to our rules the appellee has filed its bill of costs for the trial transcripts in trial court appealed from ) the Kosrae State Court.3  FSM App. R. 39(e).  That Bill of Costs is not before us.

     In the Bill of Costs before us the appellee asks for the copying costs for its Motion for Enlargement of Time to File Appellee's Brief; its Brief; its Supplemental Brief; its Rule 28(j) Submission; and its Motion for Postponement of Oral Argument.4  Appellee asks for 15 per regular sized page per copy and 20 per legal sized page per copy for a total of $35.70.  Appellee based its calculation upon the prevailing rate for copies at the commercial print shop on Kosrae.

     Appellant filed a timely opposition to Appellee's Bill of Costs.  See FSM App. R. 39(d) ("Objections to the bill of costs must be filed within 10 days of service on the party against whom costs are to be taxed unless the time is extended by the court.").  Appellant opposed the cost of the appellee's two motions on the ground that that cost was incurred because the appellee decided to seek postponement of dates established by the court and therefore it was not the actions of the appellant that caused those costs to be incurred.  Appellant also opposed the bill of costs on the ground that the cost should be calculated based upon the prevailing rate charged for copies on Pohnpei where the office of the Clerk of the Appellate Division is located.5  For this proposition the appellant relies on the provision that "[t]he cost of printing or otherwise producing necessary copies of briefs, appendices or copies of the record shall be taxable in the Supreme Court appellate division at rates not higher than those generally charged for such work in the area where the clerk's office is located."  FSM App. R. 39(c).

     The contentions of the appellant have some merit.  See Oliver v. Michigan State Bd. of Educ., 519 F.2d 619, 622 (6th Cir. 1975) (bill of actual costs submitted by printer in Detroit, Michigan disallowed to the extent that the costs exceeded those generally charged for such work in the Cincinnati, Ohio area where the office of the appellate court clerk was located).  However, we do not feel that either argument addresses the fundamental point.  Taxation of costs is not an

[6 FSM Intrm. 570]

additional award for the prevailing party.  It is a reimbursement to the prevailing party of actual expenses (costs) incurred.  See D.R. Rimmer, Annotation, Award of Costs in Appellate Proceedings in Federal Court under Rule 39 of Rules of Appellate Procedure, A.L.R. Fed. 494, 497 (1984) ("`Costs' refers to those litigation expenses for which the opposing party can be held liable . . . .").  See also 9 James W. Moore et al., Federal Practice and Procedure 239.02[1] (1990) ("Rule 39(a) follows the principle of Rule 54(b) [sic] of the Rules of Civil Procedure that the prevailing party is entitled to costs . . . ."); 6 Moore et al., supra, 54.70[1] ("Costs may be defined as an allowance, which the law awards, usually but not always to the prevailing party . . . to reimburse a party for certain expenses which he has incurred . . . .") (analyzing Civil Rule 54(d)).  The language "at rates not higher than those generally charged for such work in the area where the clerk's office is located" does not set the amount to be awarded. It sets a cap or upper limit on the actual costs incurred that can be reimbursed. Oliver, 519 F.2d at 622.

     What the appellee has submitted is not a bill of costs showing actual costs incurred, but rather an itemization of what its costs might have been if it had used the commercial print shop on Kosrae.  There is no indication that the appellee actually used the print shop's services.  Rather the fair inference is that it did not. Therefore, we must deny the appellee's motion for taxation of costs because it fails to adequately verify appellee's actual costs.  Cf. Berman v. Kolonia Town, 6 FSM Intrm. 242, 244 (Pon. 1993) (taxation of costs under FSM Civil Rule 54(d) denied where inadequate verification of actual costs), rev'd on other grounds, 6 FSM Intrm. 433 (App. 1994).

VI.  CONCLUSION
     We accordingly grant the appellant's Request to Take Judicial Notice, but deny his (second) petition for rehearing.  We also deny the appellee's motion for taxation of costs.

*    *    *    *
 
Footnotes:
 
1.  We note that counsel had formerly been the directing attorney of the office in which the copy was located.
 
2.  When an FSM Rule of Appellate Procedure is nearly identical to a U.S. Federal Rule of Appellate Procedure and the FSM Rule has not previously been construed by this court we may look to the U.S. federal courts for guidance in interpreting the rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).
 
3.  A copy of the Bill of Costs for the trial transcripts was filed along with the bill of costs for copying expenses.  This was unnecessary and potentially confusing.
 
4.  Appellee's Motion for Postponement of Oral Argument was opposed by the appellant and we denied it.  Since the appellee was not the prevailing party upon that motion it is within our discretion to deny taxation of appellee's costs relating to that motion.  However, in light of our opinion denying costs on other grounds, infra, we do not reach that question.
 
5.  Appellant filed a further opposition to appellee's bill of costs over a month after appellant's petition for rehearing was denied ) eight months after the original bill of costs was filed.  We have disregarded this opposition as untimely.  Since the filing of a petition for rehearing does not automatically extend the time for filing a bill of costs to a period 14 days beyond the ruling on the petition for rehearing, Stern v. United States Gypsum, Inc., 560 F.2d 865, 866 (7th Cir.) (absent showing of good cause bill of costs may not be filed after 14 days after entry of judgment; entry of judgment doesn't refer to any order entered with regard to petition for rehearing), cert. denied, 434 U.S. 975 (1977), it also should not extend, unless so ordered by the court, the time to oppose a timely filed bill of costs.