THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Department of the Treasury v. FSM Telcomm. Corp. ,
9 FSM Intrm. 465 (App. 2000)

[9 FSM Intrm. 465]

DEPARTMENT OF THE TREASURY AND
ADMINISTRATION OF THE STATE OF POHNPEI,
Appellant,

vs.

FSM TELECOMMUNICATIONS CORPORATION,
Appellee.

APPEAL CASE NO. P1-2000

ORDER

Richard H. Benson
Associate Justice

Decided:  July 28, 2000

APPEARANCES:
For the Appellant:     Delson Ehmes, Esq.
                                    Attorney General
                                    Pohnpei Department of Justice
                                    P.O. Box 1555
                                    Kolonia, Pohnpei FM 96941

For the Appellee:      Stephen V. Finnen, Esq.
                                    Law Offices of Saimon & Associates
                                    P.O. Box 1450
                                    Kolonia, Pohnpei FM 96941

*    *    *    *
[9 FSM Intrm. 466]
 
HEADNOTES
Appeal and Certiorari) Notice of Appeal
     Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Department of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 466-67 (App. 2000).

Appeal and Certiorari ) Notice of Appeal
     The notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal.  Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, applications for stays pending appeal, taxation of costs on a judgment after notice of appeal filed, and considering and denying a Rule 60(b) relief from judgment motions (but not granting a Rule 60(b) motion unless case remanded).  Department of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000).

Appeal and Certiorari ) Briefs and Record; Appeal and Certiorari ) Notice of Appeal
     A trial court memorandum entered after entry of both a final order and a notice of appeal is not an action in aid of the appeal, especially when such a memorandum might necessitate an appellant having to seek leave to amend its issues on appeal or take some other action it would not have otherwise had to, and may be stricken from the appellate record.  Department of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On June 22, 2000, the appellant filed its Motion to Strike Memorandum of Decision with a supporting Memorandum of Points and Authorities.  The appellee's Opposition to Motion to Strike was filed on June 29, 2000.

     The trial court entered the order appealed from on December 30, 2000.  FSM Telecomm. Corp. v. Department of Treasury, 9 FSM Intrm. 292 (Pon. 1999).  The trial court's ruling disposed of all the issues the case presented and it took effect immediately.  Id. at 294.  It also stated that the court would "issue a memorandum of decision further explaining the reasoning behind [its] order within thirty (30) days."  Id.  The Department of the Treasury and Administration of the State of Pohnpei filed its Notice of Appeal on February 4, 2000.  The trial court entered its promised memorandum of decision on May 16, 2000.  [FSM Telecomm. Corp. v. Department of Treasury, 9 FSM Intrm. 380 (Pon. 2000).]

     The appellant now moves to strike the May 16th memorandum from the record on the ground that it was entered after the appellate division had acquired jurisdiction over this case by virtue of the Notice of Appeal filed February 4, 2000. The appellee opposes striking the memorandum although it was filed late.  The appellee contends that the appellant has not shown any prejudice by allowing the memorandum to remain a part of the record, and that the appellant could "simply seek leave of this court in allowing it to amend its issues on appeal, if [it] wishes." The appellee added that the May 16th memorandum "d[oes] not add anything new to the Summary Judgment."

     Both parties agree that the December 30th summary judgment was a final order/judgment and was appealable.  I see nothing in the record that suggests otherwise.  The order resolved all issues in the case and took effect immediately. A notice of appeal followed.  Generally, a timely and properly

[9 FSM Intrm. 467]

filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999); Damarlane v. United States, 8 FSM Intrm. 14, 16 (App. 1997).  The notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal.  Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 520, 522 (App. 1996) (trial court order substituting appellees' counsel that could not appear to answer all issues on appeal not an order in aid of the appeal); Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 198-99 (Chk. 1999); Walter v. Meippen, 7 FSM Intrm. 515, 517 (Chk. 1996); Election Commissioner v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).  Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, Nimwes v. FSM, 8 FSM Intrm. 297, 298-99 (App. 1998), applications for stays pending appeal, e.g., In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997), taxation of costs on a judgment after notice of appeal filed, Damarlane v. United States, 8 FSM Intrm. 14, 17 (App. 1997), and considering and denying a Rule 60(b) relief from judgment motions (but not granting a Rule 60(b) motion unless case remanded), Walter, 7 FSM Intrm. at 517.

     I have difficulty concluding that a trial court memorandum entered after entry of both a final order and a notice of appeal could ever be considered an action in aid of the appeal especially when such a memorandum might necessitate an appellant having to seek leave to amend its issues on appeal or take some other action it would not have otherwise had to.

     Accordingly, the Memorandum of Decision entered in Civil Action No. 1997-125 on May 16, 2000 [FSM Telecomm. Corp. v. Department of Treasury, 9 FSM Intrm. 380 (Pon. 2000)] is hereby stricken from the record.  The appellee may seek review of this order by the full appellate panel if it is so advised.  FSM App. R. 27(c).  Any such motion for review shall be filed by August 10, 2000.
                                                                                                                                                                                                                                                                                                           
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