THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as O'Sonis v. Bank of Guam,
9 FSM Intrm. 356 (App. 2000)

[9 FSM Intrm. 356]

MACHIME O'SONIS and SAMUEL HARTMAN,
Appellants,

vs.

BANK OF GUAM,
Appellee.

APPEAL CASE NO. C4-1999

ORDER AND MEMORANDUM

Martin G. Yinug
Associate Justice

Decided:  March 24, 2000

APPEARANCES:
For the Appellant:     Machime O'Sonis
           (O'Sonis)        P.O. Box 187
                                   Weno, Chuuk FM 96942

For the Appellant:     Wesley Simina, Esq.
           (Hartman)       P.O. Box 94
                                   Weno, Chuuk FM 96942

[9 FSM Intrm. 357]

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

*    *    *    *

HEADNOTES
Judgments ) Alter or Amend Judgment
     A timely motion to alter or amend judgment is one served not later than 10 days after entry of the judgment.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

Appeal and Certiorari ) Notice of Appeal; Attorney, Trial Counselor and Client ) Fees
     Even if the post-judgment motion for attorney's fees had been made within ten days of the judgment, it would not have been efficacious to extend the time for filing the notice of appeal.  An attorney's fees motion is not one of the motions enumerated in Rule 4(a)(4) which changes the benchmark time extending the time for filing the notice of appeal.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

Attorney, Trial Counselor and Client ) Fees; Judgments ) Alter or Amend Judgment
     A motion for attorney's fees is unlike a motion to alter or amend a judgment.  It does not imply a change in the judgment, but merely seeks what is due because of the judgment.  It is, therefore, not governed by the provisions of Rule 59(e).  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

Appeal and Certiorari ) Notice of Appeal; Attorney, Trial Counselor and Client ) Fees; Judgments ) Alter or Amend Judgment
     A post-judgment motion for supplemental attorney's fees is not a motion to alter or amend judgment under FSM Civil Procedure Rule 59(e), and does not extend the time for the filing of the notice of appeal under Appellate Procedure Rule 4(a)(4).  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

Appeal and Certiorari ) Dismissal; Appeal and Certiorari ) Notice of Appeal
     A single justice may dismiss an appeal upon a party's failure to comply with the appellate rules' time requirements, including the time requirement to file the notice of appeal within 42 days after the entry of the judgment.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

Appeal and Certiorari ) Notice of Appeal
     The Federated States of Micronesia Supreme Court appellate division may not enlarge the time for filing of a notice of appeal.  Any power to enlarge the time for filing the notice of appeal lies with the trial division, not the appellate division.  FSM Appellate Procedure Rule 4(a)(5) provides that the court appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time to file.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 & n.2 (App. 2000).

Appeal and Certiorari ) Dismissal; Appeal and Certiorari ) Notice of Appeal
     In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal.  It is then properly dismissed.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

[9 FSM Intrm. 358]

Appeal and Certiorari ) Briefs and Record
     The appellate division has broad discretion to grant an extension of time to file a brief and appendix upon a showing of good cause.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

Appeal and Certiorari ) Briefs and Record; Appeal and Certiorari ) Dismissal
     If an appellant fails to file a brief within the time provided by the rules, or within the time as extended, an appellee may move for dismissal of the appeal.  Factors that a court may consider on a motion to dismiss an appeal under Rule 31(c) are 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.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

Appeal and Certiorari ) Dismissal
     A practicing attorney is expected to know the rules and abide by them.  Nevertheless, a preference exists for resolution of matters on the merits.  Within the bounds of reason, and except where a specific rule, law, or conduct of a party or his counsel directs a different result, this preference should be given effect.  O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361-62 (App. 2000).

*    *    *    *

COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
     I have been reassigned as the presiding judge in this case in place of Chief Justice Amaraich, since he is absent from the FSM for health reasons.

     This order disposes of three motions:  1) Motion to Reconsider Part of the Order Granting Appellee's Motion to Dismiss O'Sonis Appeal, filed December 3, 1999, by appellant Machime O'Sonis ("O'Sonis") who is proceeding pro se; 2) Motion for Enlargement of Time to File Appellant Hartman's Principal Brief, filed on December 20, 1999, by appellant Samuel Hartman ("Hartman"); and 3) Appellee's Cross-Motion to Dismiss Hartman Appeal filed on January 10, 2000, by appellee Bank of Guam.  The last motion was filed together with Bank of Guam's opposition to Hartman's request for enlargement of time.  Earlier, on December 30, 1999, Bank of Guam filed it's opposition to O'Sonis' motion for reconsideration.

     For the reasons below, O'Sonis' motion for reconsideration is denied; Hartman's motion for extension of time to file his brief on appeal is granted; and Bank of Guam's cross-motion to dismiss the appeal is denied, the Bank of Guam to file its response brief on or before April 24, 2000.

     a.  O'Sonis' motion for reconsideration
     Relevant facts for purposes of the motion for reconsideration are as follows.

     The trial court entered judgment on April 14, 1999.  Sixty-nine days later, on June 22, 1999, O'Sonis filed his notice of appeal pursuant to Rule 4(a)(1) of the FSM Rules of Appellate Procedure.  However, that rule contains a time requirement, and provides in pertinent part that appeals shall be taken by a notice of appeal filed "within forty two (42) days after the date of the entry of judgment." On September 23, 1999, Bank of Guam moved to dismiss O'Sonis' appeal on the basis that the filing of the notice of appeal was untimely.  By order of November 15, 1999, Chief Justice Amaraich dismissed the appeal.

[9 FSM Intrm. 359]

     O'Sonis raises two points.  First, he contends that his notice of appeal was filed in a timely fashion because the Bank of Guam's post-judgment motion for supplemental attorney's fees, filed on May 11, 1999, extended the time for filing the notice of appeal.  Second, he urges that Chief Justice Amaraich, acting alone, lacked the power to dismiss the appeal.

     1.  The motion for attorney's fees
     In urging that Bank of Guam's post-judgment attorney fee motion extended his appeal time, O'Sonis relies on Rule 4(a)(4) of the FSM Rules of Appellate Procedure which provides in pertinent part as follows:

(4)  If a timely motion under the Rules of Civil Procedure is filed in the Supreme Court trial division by any party:  (1) 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 of appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.  . . .

O'Sonis characterizes the fee motion as a motion to alter or amend judgment under Rule 59 ) or one brought under subsection (iii) of Rule 4(a)(4).  Even if that were the case, Rule 4(a)(4) provides that a timely motion brought by any party under one of the rules indicated extends the time of appeal.  Rule 59(e) provides that a motion to alter or amend judgment "shall be served not later than 10 days after entry of the judgment."  In this case, judgment was entered on April 14, 1999; the fee motion was filed on May 11, 1999, or 27 days later.  As such it was not a timely motion under Rule 4(a)(4).

     But even had the post-judgment fee motion been timely under Rule 59(e), it would not have been efficacious to extend the time for filing the notice of appeal. A motion for attorney's fees is not one of the motions enumerated in Rule 4(a)(4) which changes the benchmark time.  O'Sonis' characterization of the fee motion, without more, does not bring it within the pale for purposes of extending the time for filing the notice of appeal.

     Moreover, the Bank of Guam relies on a case from the United States Supreme Court which holds that a request for attorney's fees under 42 U.S.C. 1988 is not a motion to alter or amend the judgment within the meaning of Rule 59(e) of the Federal Rules of Civil Procedure.  White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982).  The court in White approved a succinct statement on the point by the Fifth Circuit Court of Appeals, noting that a "`motion for attorney's fees is unlike a motion to alter or amend a judgment.  It does not imply a change in the judgment, but merely seeks what is due because of the judgment.  It is, therefore, not governed by the provisions of Rule 59(e).'  Knighton v. Watkins, 616 F.2d 795, 797 (1980)."  455 U.S. at 452, 102 S. Ct.1166-67, 71 L. Ed. 2d at 331 (footnote by the White court omitted). Rule 59(e) of the Federal Rules of Civil Procedure is identical to Rule 59(e) of the FSM Rules of Civil Procedure, and the logic of Knighton approved in White is sound. The Bank of Guam's post-judgment motion for supplemental attorney's fees was not a motion to alter or amend judgment under Rule 59(e) of the FSM Rules of Civil Procedure.

     Accordingly, the Bank of Guam's post-judgment fee motion filed on May 11, 1999, did not extend the time for the filing of the notice of appeal under Rule 4(a)(4) of the FSM Rules of Appellate Procedure.

[9 FSM Intrm. 360]

      2.  The power of a single justice to dismiss an appeal
     O'Sonis further contends that Chief Justice Amaraich, acting alone, lacked the power to dismiss the appeal.  He relies on Rule 27(c) of the FSM Rules of Appellate Procedure.  However, that rule provides in pertinent part that "a single justice may not dismiss or otherwise determine an appeal, except upon stipulation of all parties, or upon failure of a party to comply with the time requirements of these rules." 1 (emphasis added).

     Rule 4(a)(1) of the FSM Rules of Appellate Procedure requires that the notice of appeal be filed "within 42 days after the entry of the judgment."  O'Sonis' notice of appeal was not timely, coming as it did 69 days after entry of judgment.  Since the rule permits a single justice to dismiss an appeal for failure to comply with a time requirement of the rule, Chief Justice Amaraich had the power to dismiss the appeal.  Indeed, he had no other choice, since Rule 26(b) of the FSM Rules of Appellate Procedure goes to the appellate court's jurisdiction by providing that "the Federated States of Micronesia Supreme Court appellate division may not enlarge the time for filing of a notice of appeal."2  In the absence of a timely notice of appeal, the appellate court had no jurisdiction over O'Sonis' appeal.  It was properly dismissed.

     Accordingly, the Bank of Guam's motion for supplemental attorney's fees did not extend the time for the filing of the notice of appeal.  Nor did Chief Justice Amaraich lack the authority to dismiss the appeal.  O'Sonis' motion for reconsideration is therefore denied.

     b.  Hartman's motion for enlargement of time
     The instant motion is Hartman's second motion for enlargement of time to file his brief.  The record ready notice was filed on September 1, 1999, and pursuant to Rule 12(b) of the FSM Rules of Appellate Procedure, Hartman's brief was due on or before October 18, 1999.  On October 12, 1999, Hartman filed his first motion for enlargement requesting until December 17, 1999, to file his brief.  The motion was granted for good cause on November 15, 1999.  Hartman did not file his brief by the December 17th deadline.  Three days later on December 20, 1999, Hartman filed his second motion for enlargement supported by the affidavit of counsel in which Hartman's attorney cites the press of

[9 FSM Intrm. 361]

professional obligations as the reason for failure to file the brief.  Hartman requested until January 17, 2000, to file his brief.  Thereafter, prior to the court's ruling on the motion for an extension, Hartman filed his brief on January 26, 2000.

     The Bank of Guam opposes the motion for extension.  It contends that counsel should have better managed his time so his brief would have been filed in a timely manner.  The Bank of Guam also contends that it is "severely prejudiced by further delays, rising legal fees and efforts to oppose Hartman's latest motion." Appellee's Opp'n to Second Motion for Enlargement of Time to File Appellant Hartman's Principal Brief at 4.

     Rule 26(b) of the FSM Rules of Appellate Procedure provides that "[t]he court for good cause shown may upon motion . . . permit an act to be done after the expiration of such time [for the doing of the act]."  The court does not condone counsel's failure to file his brief by the December 17, 1999, extension date. Assuming that the press of counsel's professional commitments rendered the request for a second extension necessary, he should have made certain that he had requested an additional enlargement of time before the December 17, 1999, date had come and gone.  That having been said, he did request a further extension three days after December 17th date had passed, and filed his brief thereafter on January 26, 2000.  The appendix followed on February 18, 2000.

     Rule 26(b) gives the appellate division broad discretion to grant an extension of time upon a showing of good cause.  Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).  The court in its discretion grants Hartman's request for an extension. The filing of the brief on January 26, 2000, is permitted, as well as the filing of the appendix on February 18, 2000.  Bank of Guam shall file its response brief on or before April 24, 2000.

     c.  Bank of Guam's cross-motion to dismiss the appeal
     Since the court grants Hartman's request for a second extension, the cross-motion to dismiss the appeal is denied.  At the same time, the court is not immune to the Bank of Guam's frustration ) in an ideal world, this appeal would have proceeded more expeditiously.  Some discussion is appropriate.

     Under Rule 31(a) of the FSM Rules of Appellate Procedure, "[i]f an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal."  The Bank of Guam cites Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224 (App. 1993), in support of its contention that the case should be dismissed.  Under Nakamura, factors that a court may consider on a motion to dismiss an appeal under Rule 31(c) are "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."  Id. at 227.

     Hartman had been given an extension until December 17, 1999, to file his brief. He did not do so, but three days later filed a second request for extension, and on January 26, 2000, or 40 days later, filed his brief.  Thereafter on February 18, 2000, he filed his appendix, which under Rule 30(a)(6) of the Rules of Appellate Procedure should have been filed along with the brief.

     As the Bank of Guam points out, the court in Nakamura held that "[t]he 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."  Id. at 229.  Nevertheless, a preference exists for resolution of matters on the merits.  Paul v. Hedson, 6 FSM Intrm. 146, 147 (Pon. 1993).  Within the bounds of reason, and except where a specific rule, law, or conduct of a party or his counsel directs a different result, this preference should be given effect.  The failure of Hartman's counsel to

[9 FSM Intrm. 362]

file the brief on appeal in this case in a timely fashion was not on balance so egregious that his client Hartman should be precluded from further prosecution of his appeal.  It is with these concerns in mind that the court has granted Hartman's motion for extension, and denies the cross-motion to dismiss the appeal.

     In summary, O'Sonis motion for reconsideration is denied; Hartman's motion for extension to file his brief on appeal is granted; and Bank of Guam's cross-motion to dismiss the appeal is denied.
 
 
Footnotes:
 
1.  While ostensibly citing to Rule 27(c) of the FSM Rules of Appellate Procedure, O'Sonis appears to rely on the text of Rule 27(c) of the Chuuk Rules of Appellate Procedure, which is different in a critical respect from the FSM rule.  The Chuuk rule does not include the exception for untimeliness italicized in the portion of the FSM rule set out in the text, but merely contains the unqualified statement in this regard that "a single justice may not dismiss . . . an appeal."

2.  Any power to enlarge the time for filing the notice of appeal lies with the trial division, not the appellate division.  Rule 4(a)(5) of the FSM Rules of Appellate Procedure provides that "[t]he court appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)."  Rule 4(a)(5) limits such an extension in that "[n]o such extension shall exceed 30 days past such prescribed time [i.e., the 42 days] or 10 days from the date of entry of the order granting the motion, whichever occurs later."  Forty-two days after entry of judgment in this case was May 26, 1999, and 30 days thereafter was June 25, 1999.  Unlike O'Sonis, who filed no motion for extension with the trial court or, for that matter, with the appellate court, appellant Hartman filed his motion for extension with the trial court within the 30 day period after the 42 days had expired. He filed the motion for extension on June 7, 1999; on June 22, 1999, the trial court granted the request for extension, and gave Hartman ten days to file his notice of appeal.  Hartman filed his notice of appeal the day after the trial court granted the motion, on June 23, 1999.
                                                                                                                                                                                                                                                                                                           
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