KOSRAE STATE COURT
TRIAL DIVISION
Cite as Youngstrom v. Phillip,
9 FSM Intrm. 103 (Kosrae S. Ct. Tr. 1999)

[9 FSM Intrm. 103]

VERNON YOUNGSTROM,
Plaintiff,

vs.

CLAUDE PHILLIP,
Defendant.

CIVIL ACTION NO. 48-87

ORDER

Martin Yinug
Designated Justice

Decided:  April 13, 1999

APPEARANCES:
For the Plaintiff:          Fredrick L. Ramp, Esq.
                                     P.O. Box 1480
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Douglas Parkinson, Esq.
                                     P.O. Box 2069
                                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Decisions Reviewable
     Appeals may be taken to the appellate division of the FSM Supreme Court from all final decisions of the trial division of the Kosrae State Court and from any other civil case if permitted as a matter of state law.  Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

Appeal and Certiorari ) Decisions Reviewable
     When no final judgment or decree has been entered an appeal may be taken from the Kosrae State Court from an interlocutory order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions; or, in a civil proceeding, when a justice has certified that an order not otherwise appealable involves a controlling question of law concerning which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance completion of the action.  Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

Appeal and Certiorari ) Decisions Reviewable; Appeal and Certiorari ) Stay
     An order directing the Kosrae Land Commission, a non-party, to complete the division of disputed land is not injunctive in nature, and is not a controlling question of law. Therefore the order

[9 FSM Intrm. 104]

is not appealable, and it should not be stayed pending any putative appeal.Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

Appeal and Certiorari ) Stay; Judgments
     A final judgment that precisely defines a disputed boundary cannot be entered until the Land Commission completes the survey partitioning the land. Once the boundary is determined, the defendant may then meaningfully assess his situation for purposes of considering any appeal. Therefore a motion to stay the survey's completion pending appeal will be denied.  Youngstrom v. Phillip, 9 FSM Intrm. 103, 106 (Kos. S. Ct. Tr. 1999).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Designated Justice:
     The court has received the following:

     1)  defendant's Motion for Stay Pending Appeal filed March 9, 1999, and the response thereto filed on March 29, 1999;

     2)  defendant's Motion for Order Directing Land Commission to Cease, Pending Decision on Motion for Stay Pending Appeal, which was filed on March 27, 1999;

     3)  a letter from Mr. Johnston S. Jonas, dated March 30, 1999, in which he requests an additional month, or until about May 1, 1999, to complete the survey incident to the partitioning of the land known as Pukusrik because of heavy rain and technical problems with the survey work; and

     4)  a copy of a letter from Fred Ramp to Mr. Johnston Jonas of the Kosrae Land Commission dated April 8, 1999, in which Mr. Ramp requests confirmation that the survey was completed by March 31, 1999, and further requesting a copy of the survey.

     For the reasons set out below, the motions designated 1) and 2) are denied. The request for additional time to complete the survey is granted, with the survey to be completed on or before May 1, 1999.  Upon the completion of the survey, Mr. Jonas is directed to send a copy of the survey to counsel for both parties.

     Defendant moves for stay of this court's order entered February 9, 1999.  The defendant characterizes the order as remanding this matter to the Kosrae Land Commission "to perform the purely ministerial task of dividing the disputed land in accordance with Plaintiff's Proposal 2 no later than March 15, 1999."  Defendant urges that such a stay will preserve the status quo pending appeal.  Defendant requests that the stay be entered pursuant to 4 F.S.M.C. 117, which would seem to apply to the FSM Supreme Court.

     The Kosrae Land Commission had also responded to the February 9, 1999, order by a letter dated February 18, 1999, in which Mr. Johnston Jonas, Senior Land Commission, indicates that a survey is necessary in order to divide the land according to the February 9, 1999, order and requesting until March 31, 1999, to complete the survey.  (That request was granted; the letter of March 30, 1999, referenced supra requests an additional extension of time to complete the survey.) The defendant's motion for stay asks that all steps necessary by the Land Commission to partition the land, including the survey which Mr. Jonas has indicated is necessary, cease pending the appeal.

[9 FSM Intrm. 105]

     The threshold question is one of appealability, since if the court's February 9, 1999, order is not appealable, then in strict logic there is no basis for the motion. The court first addresses the issue of appealability.

     Rule 4(a) of the FSM Rules of Appellate Procedure provides in pertinent part that "[t]hese rules govern procedure in appeals to the Federated States of Micronesia Supreme Court appellate division from . . . trial proceedings before the Kosrae State Court."  Rule 4(a)(1) of the FSM Rules of Appellate Procedure further provides in relevant part that:  "appeals may be taken: . . . (A) from all final decisions of the trial division[] of . . . the Kosrae State Court. . . .  (E) in any other civil case in which an appeal to the division of the FSM Supreme Court appellate division is permitted as a matter of state law."

     Article VI, section 6 of the Kosrae Constitution provides that "[d]ecisions of the State Court may be appealed to the appellate division of the Supreme Court of the Federates States of Micronesia."  As contemplated by Rule 4(a)(1)(E) of the FSM Rules of Appellate Procedure, 6.404 of the Kosrae State Code specifies the grounds upon which an appeal may be taken to the appellate division of the FSM Supreme Court.  Like Rule 4(a)(1)(A), subsection (1) of 6.404 provides that appeals may be taken "from a final order or judgment."  Subsection (3) of 6.404 applies to receiverships, while subsections (4) and (5) apply to criminal proceedings.  This leaves subsections (2) and (6), which provide that an appeal may be taken under the following circumstances:

(2)  from an interlocutory order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions;
 
 *    *    *
 
(6)  in a civil proceeding, when a justice has certified that an order not otherwise appealable involves a controlling question of law concerning which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance completion of the action.

     No final judgment or decree as required by Rule 58 of the Kosrae Rules of Civil Procedure has been entered thus far in this case.  Hence, the February 9, 1999, order is not appealable as provided by either Rule 4(a)(1)(A) of the FSM Rules of Appellate Procedure or 6.404(1) of the Kosrae State Code.

     Defendant describes the February 9, 1999, order directing the Kosrae Land Commission, a non-party, to complete the division of the property as involving "the purely ministerial task of dividing the disputed land in accordance with Plaintiff's Proposal 2."  Defendant does not suggest that the order is injunctive in nature, and the court can discern no basis for concluding that it is.  The February 9, 1999, order therefore does not fall within 6.404(2) of the Kosrae State Code.  Nor does the order fall within 6.404(6), as defendant does not seek via the appeal process a decision of the FSM appellate division on a controlling question of law forming the basis for the order.  Hence, the court's February 9, 1999, order meets none of the criteria for appealability as set out by either Rule 4(a)(1) of the FSM Rules of Appellate Procedure or 6.404 of the Kosrae State Code.  Since the order is not appealable, it follows that it should not be stayed pending any putative appeal.

     However, the court looks to the substance of the motion for stay, and in so doing deems it a motion for reconsideration under Rule 54(b) of the Kosrae Rules of Civil Procedure.  Viewed in this light, the motion is denied.  Defendant contends that the order should be stayed in order to preserve the status quo, but specifies no actual harm which will result to defendant from completing the survey and finalizing the partition of the disputed property.  Defendant contends that "[i]f the appealed decision were overturned, the Land Commission's work would have to be undone," which is true, but that does not obviate the need for the partition to be completed in the first place.  Leaving the partition issue in

[9 FSM Intrm. 106]

limbo by directing the Land Commission not to complete the survey would preclude entry of a final judgment that precisely defines the disputed boundary. The survey needs to happen.  Until the survey is completed, neither party will know where the boundary resulting in a 50/50 division actually lies.  When the boundary is determined, the defendant may then meaningfully assess his situation for purposes of considering any appeal.  Further, the appellate division, like the parties, should know exactly where the boundary lies in the event that defendant should choose to prosecute any appeal upon the entry of final judgment.

     For these reasons, both the motion for stay of the February 9, 1999, order, and the motion requesting the court to direct the Kosrae Land Commission to cease its survey efforts are denied.  The Kosrae Land Commission has until May 1, 1999, to complete the survey, at which time it will forward a copy of the survey to both parties.
                                                                                                                                                                                                                                                                                                           
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