FSM SUPREME COURT
APPELLATE DIVISION
Cite as Damarlane v. Pohnpei,
9 FSM Intrm. 114 (App. 1999)

[9 FSM Intrm. 114]

KADALINO DAMARLANE, GREGORIO
DAMARLANE and BENSIS DAMARLANE,
Appellants,

vs.

STATE OF POHNPEI and POHNPEI
TRANSPORTATION AUTHORITY,
Appellees.

APPEAL CASE NO. P3-1995

OPINION

Argued:  January 15, 1999
Appeal Dismissed:  January 15, 1999
Opinion Issued:  April 23, 1999

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court


[9 FSM Intrm. 115]

APPEARANCES:
For the Appellants:     Mary Berman, Esq.
                                      P.O. Box 163
                                      Kolonia, Pohnpei FM 96941

For the Appellees:      Kathleen A. Rittner, Esq.
                                      Assistant Attorney General
                                      Pohnpei Department of Justice
                                      P.O. Box 1555
                                      Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Decisions Reviewable
     With some exceptions, the FSM Supreme Court does not exercise jurisdiction over appeals that are not from final decisions.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 117 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     The FSM Supreme Court can hear appeals from final decisions of the highest state courts in Yap and Pohnpei if the cases require interpretation of the national Constitution, national law, or a treaty.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 117 (App. 1999).

Constitutional Law ) Pohnpei ) Judicial Powers
     The Pohnpei Constitution provides that single appellate justice orders are subject to review by a full appellate panel of justices hearing the appeal.  This constitutional provision is self-executing.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable; Constitutional Law ) Pohnpei ) Judicial Powers
     A single justice order in the Pohnpei Supreme Court appellate division is not a final decision of the Pohnpei Supreme Court because it is subject to review by a full appellate panel of the Pohnpei Supreme Court.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     A single appellate justice might not be considered the highest state court when his orders are subject to review by a full appellate panel.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 n.3 (App. 1999).

Appeal and Certiorari; Constitutional Law ) Pohnpei ) Judicial Powers
     A motion to reconsider a single justice appellate order in the Pohnpei Supreme Court is an application for review by a full appellate panel.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable
     A motion to reconsider dismissal of an appeal by the Pohnpei Supreme Court appellate division is relief under comparable rules of any state court from which an appeal may lie equivalent to motions under the rules specifically cited in FSM Appellate Rule 4(a)(4) because the motion seeks reversal or modification of an earlier dispositive order.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

[9 FSM Intrm. 116]

Appeal and Certiorari; Appeal and Certiorari ) Notice of Appeal
     Appellate Rule 4(a)(2), which allows a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order to be treated as filed after such entry and on the day thereof, is designed for cases of premature appeals where it is known that the final order or judgment to be entered will merely reflect the earlier decision.  It specifically does not apply when Rule 4(a)(4) does.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

Appeal and Certiorari; Judgments ) Relief from Judgment
     A Rule 60(b) motion is for relief from the judgment of a trial court, not the reconsideration of an appellate order.  A motion to reconsider before the Pohnpei Supreme Court appellate division is not analogous to a relief from judgment motion.  It is instead analogous to the types of motions to reconsider specifically mentioned in FSM Appellate Rule 4(a)(4).  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118-19 (App. 1999).

Appeal and Certiorari; Appeal and Certiorari ) Notice of Appeal
     Generally, a properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable; Appeal and Certiorari ) Notice of Appeal
     A properly filed notice of appeal will not create subject matter jurisdiction in FSM Supreme Court when there is none, but it always has jurisdiction over an appeal to determine if it has subject matter jurisdiction.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 n.4 (App. 1999).

Appeal and Certiorari ) Decisions Reviewable; Appeal and Certiorari ) Notice of Appeal
     A notice of appeal filed in the FSM Supreme Court while a motion to reconsider is pending before the Pohnpei Supreme Court appellate division has no effect because it was prematurely filed.  Jurisdiction was thus never transferred to the FSM Supreme Court appellate division.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On December 29, 1998, the court issued an order requiring the parties to file memorandums concerning our jurisdiction to hear this appeal when the record reveals that there is pending before the Pohnpei Supreme Court appellate division a motion to reconsider its dismissal of this case.  Initial oral argument was confined to this jurisdictional question.  After retiring to consider the question, we dismissed this appeal from the bench.  We concluded that we lacked jurisdiction over the appeal because it was not from a final decision.  Our reasoning follows.

I.
     On March 14, 1991, the Pohnpei Supreme Court trial division issued a declaratory judgment in favor of the plaintiffs State of Pohnpei and Pohnpei Transportation Authority against the Damarlane defendants.  See Pohnpei v. Damarlane, 4 Pon. L.R. 288 (Tr. 1991).  The Damarlanes then appealed

[9 FSM Intrm. 117]

to the Pohnpei Supreme Court appellate division. 1

     On May 24, 1995, a single justice of the Pohnpei Supreme Court appellate division dismissed the appeal on the grounds that the Damarlanes had not complied with a procedural order and that decisions in other cases had made the appeal moot.  The Damarlanes filed a motion to reconsider the dismissal in the Pohnpei Supreme Court appellate division on June 19, 1995.  On June 27, 1995, they filed a notice of appeal in the FSM Supreme Court appellate division, and served it on the Pohnpei Supreme Court appellate division and the appellees the same day.  An opposition to the reconsideration motion was filed in the Pohnpei Supreme Court appellate division on June 29, 1995.  The motion was never ruled upon. 2

II.
     We therefore raised the question of our jurisdiction based on whether the appeal before us was from a final decision of the Pohnpei Supreme Court appellate division.  We have carefully considered the parties' memorandums on this point and listened to their oral argument.

     Generally, only final decisions may be appealed.  In re Extradition of Jano, 6 FSM Intrm. 23, 24 (App. 1993).  With some exceptions, none of which apply in this case, we do not exercise jurisdiction over appeals that are not from final decisions. We can hear appeals "from final decisions of the highest state courts in Yap and Pohnpei if the cases require interpretation of the national Constitution, national law, or a treaty."  FSM App. R. 4(a)(1)(A).

     The Damarlanes now contend that the single justice dismissal is a final order because the Pohnpei Supreme Court Appellate Rules do not contain any provision for motions to reconsider.  The Damarlanes further contend that should the Pohnpei Supreme Court appellate division want to grant the motion to reconsider it would have to so indicate and ask the FSM Supreme Court appellate division to remand the case to it so it could, but that it could deny the motion without waiting for a remand.  For this proposition they rely on various U.S. authorities interpreting U.S. Civil Procedure Rule 60(b).  Additionally, the Damarlanes assert that the Pohnpei Supreme Court's long inaction amounts to a denial of its motion to reconsider.

     The appellees contend that there is no final decision because Pohnpei Supreme Court Appellate Rule 6 allows the filing of motions in the appellate division, and because under section 16-4 of the Pohnpei Judiciary Act of 1995, Pon. S.L. 3L-99-95, 16-4, single justice decisions may be appealed to the full appellate division.  The appellees also contend that if the Pohnpei Judiciary Act were not in effect, a similar provision in the Pohnpei Constitution would still provide for full appellate review of a single justice order.

III.
     The Pohnpei Judiciary Act of 1995 was not in effect at the time Justice Johnny dismissed the appeal on May 24, 1995, or when the Damarlanes filed their reconsideration motion on June 19, 1995.  The Governor of Pohnpei signed it into law on July 20, 1995.  There was no provision similar to section

[9 FSM Intrm. 118]

16-4 in the earlier judiciary act.  But we do not have to decide whether section 16-4 would apply to a pending reconsideration motion.  The Pohnpei Constitution provides that single appellate justice orders are "subject to review by a full appellate panel of justices hearing the appeal."  Pon. Const. art. 10, 5(2).  We believe, and the appellants concede, that this constitutional provision is self-executing.  It is therefore applicable.  We conclude that the single justice order is not a final decision because it is subject to review by a full appellate panel of the Pohnpei Supreme Court.3  Moreover, we consider the Damarlanes' motion to reconsider can only be an application for such appellate review.

     Furthermore, under our appellate rules the Damarlanes' notice of appeal in our appellate division was of no effect.  FSM Appellate Rule 4(a)(4) provides that:

If a timely motion under the Rules of Civil Procedure is filed in the Supreme Court Trial Division by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment, or (iv) under Rule 59 for a new trial or for any equivalent relief under comparable rules of any state court from which an appeal may lie, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.  A notice of appeal filed before the disposition of any of the above motions shall have no effect.  A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

FSM App. R. 4(a)(4).  A motion to reconsider dismissal of an appeal is "equivalent relief under comparable rules of any state court from which an appeal may lie," when it comes from a state appellate court.  The motion seeks reversal or modification of an earlier dispositive order, like motions under the rules specifically cited in Rule 4(a)(4).  The Pohnpei constitutional provision allowing a single appellate justice's ruling to be reconsidered by the full appellate panel, Pon. Const. art. 10, 5(2), is the comparable rule.

     The saving provision of Appellate Rule 4(a)(2) would not assist the Damarlanes even if the Pohnpei Supreme Court appellate division had ruled on the motion before we considered the appeal.  That rule provides that "[e]xcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof."  FSM App. R. 4(a)(2).  That rule is designed for cases of premature appeals where, unlike the pending motion in the Pohnpei Supreme Court, it is known that the final order or judgment to be entered will merely reflect the earlier decision.  It specifically does not apply when Rule 4(a)(4) does.  Thus even if we did not act on this appeal until after the Pohnpei Supreme Court appellate division had ruled on the pending reconsideration motion, the notice of appeal would still have had no effect and this appeal would still have to be dismissed unless a new notice of appeal had been filed afterward.

     The Damarlanes' reliance on the procedure for motions to reconsider under Rule 60(b) is misplaced.  The procedure they recommend ) remand the case to the lower court if the lower court indicates it intends to grant the motion ) has been used in the FSM Supreme Court for a Rule 60(b) relief from judgment motion when a case was on appeal.  Walter v. Meippen, 7 FSM Intrm. 515 (Chk. 1996).  But a Rule 60(b) motion is for relief from the judgment of a trial court, not the reconsideration

[9 FSM Intrm. 119]

of an appellate order.  The motion to reconsider before the Pohnpei Supreme Court appellate division is not analogous to a relief from judgment motion.  It is instead analogous to the types of motions to reconsider specifically mentioned in FSM Appellate Rule 4(a)(4).

     Generally, a properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.4  See >Damarlane v. United States, 8 FSM Intrm. 14, 16 (App. 1997); Walter, 7 FSM Intrm. at 517; Election Commissioner v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).  But the notice of appeal, filed June 27, 1995, had "no effect" because it was filed before the reconsideration motion had been ruled upon.  FSM App. R. 4(a)(4).  It was thus prematurely filed, and jurisdiction was never transferred to the FSM Supreme Court appellate division.

     The Pohnpei Supreme Court appellate division was thus free to rule on the reconsideration motion at any time because jurisdiction had never been properly transferred to the FSM Supreme Court.  We can understand how the Pohnpei Supreme Court appellate division might be hesitant to act on the appellants' motion to reconsider once it had been served with the appellants' notice of appeal to the FSM Supreme Court appellate division.  Nevertheless, it could have without infringing on our jurisdiction or sensibilities.

IV.
     Accordingly this appeal was dismissed for lack of jurisdiction.  It was not from a final decision of the Pohnpei Supreme Court appellate division, the highest state court in Pohnpei.  Furthermore, because the notice of appeal was filed in the FSM Supreme Court appellate division while a motion for reconsideration was pending before the Pohnpei Supreme Court appellate division, it had no effect to transfer jurisdiction to our appellate division.
 
 
Footnotes:
 
1.  They also attempted a direct collateral appeal to the FSM Supreme Court appellate division.  We dismissed that appeal.  Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322 (App. 1992).

2.  The events in this chronology, other than the notice of appeal, were unknown to us until after the state court provided its Certification of Records to our Chief Clerk in May, 1998.

3.  Additionally, a single appellate justice might not be considered the highest state court when his orders are subject to review by a full appellate panel.  See Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

4.  Naturally, a properly filed notice of appeal will not create subject matter jurisdiction in our court where there is none, but we always have jurisdiction over an appeal to determine if we have subject matter jurisdiction.  In the present case, we have not addressed whether we would have had subject matter jurisdiction over the underlying appeal since our ruling rests primarily on our conclusion that the order appealed from was not a final decision.
 
                                                                                                                                                                                                                                                                                                           
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