FSM SUPREME COURT
TRIAL DIVISION
Cite as Bank of Guam v. O'Sonis,
9 FSM Intrm. 197 (Chuuk 1999)

[9 FSM Intrm. 197]

BANK OF GUAM,
Plaintiff,

vs.

ASSOCIATE JUSTICE MACHIME O'SONIS,
in his individual and official capacities, and
SAMUEL HARTMAN,
Defendants.

CIVIL ACTION NO. 1997-1057

ORDER DENYING
MOTION FOR WANT OF JURISDICTION

Richard H. Benson
Associate Justice

Decided:  August 23, 1999

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

[9 FSM Intrm. 198]
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HEADNOTES
Civil Procedure ) Motions
     Even though failure to timely oppose a motion is deemed a consent to that motion, a court still needs proper grounds before it can grant the motion.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 198 (Chk. 1999).

Appeal and Certiorari ) Notice of Appeal
     Generally, a notice of appeal acts to transfer jurisdiction from the trial court to the reviewing court, except for the trial court to take action in aid of the appeal, such as an application for release from jail pending appeal, a motion for stay, taxing costs, considering and denying (but not granting unless remanded) a Rule 60(b) relief from judgment motion.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 198-99 (Chk. 1999).

Appeal and Certiorari ) Notice of Appeal
     A trial court is without jurisdiction or authority to strike a notice of appeal from the record no matter how inadequate the notice because it raises a question addressed to the appellate court's jurisdiction.  Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 199 (Chk. 1999).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     Final judgment in this matter was entered on April 14, 1999.  On June 22, 1999, defendant Machime O'Sonis filed a Notice of Appeal.  On July 29, 1999, the plaintiff, Bank of Guam, filed its Motion to Quash Notice of Appeal of Defendant O'Sonis; Motion to Strike.  The motion had been served on the other parties on July 22, 1999.  No opposition has been filed.

     Even though failure to timely oppose a motion is deemed a consent to that motion, Actouka v. Etpison, 1 FSM Intrm. 275, 276 (Pon. 1983) (relying on FSM Civ. R. 6(d)), I still need proper grounds before I can grant the motion, Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).  The Bank's first ground for the motion is that O'Sonis's notice was filed later than the 42 days after entry of judgment, which in this case would have been May 26, 1999.  Rule 4(a)(1) of the Rules of Appellate Procedure requires that notices of appeal in civil cases be filed within 42 days of the entry of judgment or order appealed from.  The Bank's second ground is that (unlike the other defendant in this case) defendant O'Sonis did not, within 30 days of the expiration of the original 42-day period, seek an extension of the time for filing a notice of appeal as permitted by Appellate Rule 4(a)(5).  That time period ended on June 25, 1999.  The Bank thus contends that since no extension of time was moved for and none granted that O'Sonis's notice, filed June 22, 1999, is untimely and must be quashed and stricken from the record.

     Generally, a notice of appeal acts to transfer jurisdiction from the trial court to the reviewing court, see, e.g., Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999); Damarlane v. United States, 8 FSM Intrm. 14, 16 (App. 1997); Walter v. Meippen, 7 FSM Intrm. 515, 517 (Chk. 1996) (notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal); >Election Commissioner v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994), with some exceptions that do not apply here, see, e.g., Nimwes v. FSM, 8 FSM Intrm. 297, 298-99 (App. 1998) (application for release from jail pending appeal should first be made to trial court); In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997) (motion for stay should first be made to trial court); Damarlane, 8 FSM Intrm.

[9 FSM Intrm. 199]

at 17 (trial court can tax costs after notice of appeal filed); Walter, 7 FSM Intrm. at 517 (while appeal is pending trial court has power to both consider and deny Rule 60(b) relief from judgment motions, but cannot grant a Rule 60(b) motion unless case remanded).

     The Bank has not cited any authority, nor have I found any FSM authority, that a trial division justice has the power to strike a notice of appeal from the record. Because the FSM procedural rules are similar to the United States federal procedural rules I may look to U.S. federal courts for guidance when there is none in the FSM.  Senda, 6 FSM Intrm. at 444.

     The trial court in Arundar v. DeKalb County School District, 522 F.2d 677 (N.D. Ga. 1981) was faced with a similar situation when the defendants asked the trial court to dismiss the plaintiff's notice of appeal because it had been filed later than the thirty days allowed by 28 U.S.C. 2107.  Id. at 678.  In that case, as in this, the adverse party did not respond to the motion.  Id. at 679.  The trial court nevertheless reasoned that since a case is lodged in only one court at a time and that once an appeal has been filed jurisdiction generally lies in the appellate court with the trial court lacking jurisdiction to act except in aid of the appeal, that there were serious doubts whether a trial court could strike a notice of appeal no matter how inadequate the notice was.  Id. at 678-79.  It therefore denied the motion for want of jurisdiction "rather than chance infringing upon" the appellate court's "jurisdictional `territory.'"  Id. at 679.

     The Arundar court relied on Hogg v. United States, 411 F.2d 578 (6th Cir. 1969) as the case most on point.  Arundar, 522 F. Supp. at 679.  In Hogg, the trial court had ordered the government's notice of appeal stricken pursuant to Rule 11 and expunged from the record and directed the clerk not to prepare or transmit the record.  Hogg, 411 F.2d at 579.  The appellate court held that the trial court had no power to strike a notice of appeal on the ground it was not authorized.  Id. at 480. The appellate court concluded that the trial court's striking of the notice of appeal "was not an act authorized by the Rules in aid of the appeal and is therefore a nullity."  Id.  It stated that any objection to the authorization for the filing of the notice of appeal raised a question addressed to the appellate court's jurisdiction and was not within the trial court's jurisdiction.  Id.  It vacated the trial court order and reinstated the notice of appeal.

     The Arundar court also considered United States v. Lewis, 522 F.2d 1367 (5th Cir. 1975).  In Lewis, the appellate court vacated the trial court's dismissal of a criminal appeal filed after the ten-day period allowed for appeal, but before the 30-day extension period allowed for excusable neglect had expired and remanded the case for the trial court to make written findings determining if there had been excusable neglect.  The appellate court stated that it had "some doubt as to whether the [trial] court had power to dismiss the appeal," but said it omitted that question in reaching its remand decision.  Id. at 1368 (citing Hogg).

     I find Arundar persuasive.  I have found no contrary authority and none has been cited to me.  The motion is therefore denied for want of my jurisdiction to rule on it. The Bank may raise this issue with the appellate division if it is so advised.