APPELLATE RULES

Rule 1.   Applicability of Rules.
     These rules apply to all appeals in the courts of the State of Ponape, except where specifically limited herein or by law. All appeals must be filed and prosecuted as provided in these rules. Appellate Court as used in these rules means the court to which the appeal is taken.

Rule 2.   Notice of Appeal-Contents.
     The Notice of Appeal shall set forth the title of the action; specify the party or parties taking the appeal, as well as the name and address of appellants counsel, if any; designate the judgment or part thereof appealed from, giving its date and the time of its entry; contain a concise statement of the questions presented by the appeal; and if a criminal case, shall include a general statement of the offense, the sentence imposed and the place of confinement if defendant is in custody. Only questions set forth in the notice of appeal or fairly comprised therein will be considered by the Appellate Court. The notice of appeal shall include proof of service on all adverse parties or their counsel, if any.

Rule 3.   Notice of Appeal-Time and Place of Filing.
     (a)   Time.   An appeal to review any judgment shall be filed within 30 days after the imposition of sentence in a criminal case or service of the judgment in a civil case unless otherwise provided by statute. The time for filing an appeal is terminated by the timely filing in accordance with the Rules of Civil Procedure or the Rules of Criminal Procedure, a motion to alter or amend the judgment or a motion for a new trail. The full time for appeal commences to run and is to be computed from the service of an order granting or denying a motion to alter or amend the judgment or the denying of a motion for a new trial.

     (b)   Place.   An appeal to review a judgment shall be deemed to be timely filed if the notice of appeal is filed within the time prescribed in subsection (a) hereof with the presiding judge of the court from which the appeal is taken or with the clerk of the Ponape State Court in the case of appeals from the Trial Division of the State Court.

     Any notice of appeal filed in a state court other than the Ponape State Court shall be promptly forwarded by the court to the clerk of court of Ponape State Court, with a notation addressed thereon of the date of filing. Notification of the filing of the notice of appeal shall be given by the clerk of court by making or delivering copies thereof to the presiding judge of the court appealed to, and the judge whose judgment, order or sentence is appealed from (unless the notice of appeal was originally filed with the judge) but the clerk of courts failure to so notify does not affect the validity of the appeal.

Rule 4.   Service.
     Whenever any pleading, motion, notice, brief or other document is required by these rules to be served, said service shall be accomplished in accordance with Rule 5, of this court Rules of Civil Procedure.

Rule 5.   Computation and Enlargement of Time.
     (a)   Computation.   In computing any period of time prescribed or allowed by these rules, by order of the court or by any applicable statute, Rule 6, Ponape State Rules of Civil Procedure shall be controlling.

     (b)   Enlargement.   The time specified in these rules for any proceedings, except the filing of a notice of appeal may be extended by order of a judge of the court to which the appeal is taken, provided, however, the trial judge may extend the time for filing a notice of appeal upon application of a party prior to the expiration of the original thirty-day period.

     All applications for extensions of time must be timely filed within the period sought to be extended. In the case of appeals to the Appellate Division, the clerk of the Appellate Court will refuse to receive any application for an extension sought to be presented after expiration of the period sought to be extended.

     Whenever a judge had granted an extension of time within which a party may file his motion, brief or other document, it shall be the duty of the party to whom such extension is granted, to give all parties to the proceedings prompt notice thereof.

Rule 6.   Motions.
     All motions shall be in writing and shall state clearly its object and the facts on which it is based. A brief in support of the motion (other than motions to enlarge time) shall be filed in the motion.

     Motions shall be filed with the clerk of court to which the appeal is taken together with proof of service. Oral argument will not be heard on any motion unless the court specifically assigns it thereof.

Rule 7.   Stay of Judgment.
     (a)   Stay of Judgment Pending Appeal.   Any request for stay of execution of the judgment, order, or sentence pending appeal shall ordinarily be made in the first instance to the trial judge. If he denies the request, the matter may be taken up directly with any other judge authorized to sit in the court to which the appeal is taken. If the record had not yet been certified, the appellant shall accompany the request to any judge, other than the trial judge, by a statement under oath, setting forth sufficient details clearly indicate what questions of law are involved and how these arise. In the absence of unusual circumstances, as showing that the appeal raises a substantial question of law shall be sufficient cause for granting a stay upon reasonable terms.

     (b)   Limitation on Stay of Judgment.   Except as provide in the following section of this Rule, no stay of judgment of the Trial Judge of the Ponape State Court in a civil action shall be granted pending appeal unless the party requesting the stay gives satisfactory security for the satisfaction of the judgment in full, together with any costs, interests and damages for delay, in the event the appeal is dismissed or the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interests, and damages as the court on appeal may adjudge and award.  This security may be in the form of a bond with surety or securities, or deposit of money in court, or stipulation between the parties or court order entrusting certain assets to the control of a third-person, or otherwise, provided the arrangements are agreeable with the judge granting the extension of ensure compliance with the judgment or any modification of it which the court on appeal may make. If the appeal is from the granting, dissolving, or denying of an injunction, the trial judge may in his discretion suspend, modify, restore, or grant an injunction pending appeal upon such terms as he considers proper for the security of the rights of the adverse party or parties.

     (c)   No Security Required of the Ponape State or an Agency or Officer Thereof. When an appeal is taken by the state or an officer or agency thereof in his or its official capacity, no security shall be required for stay of execution of judgment pending appeal.

Rule 8.   Supervision of Appeals.
      The supervision and control of the proceedings on appeal shall be in the court appealed to from the time the notice of appeal is filed with or received by its clerk. The court appealed to may at any time entertain a motion to dismiss the appeal, or for directions to the lower court, or to modify or vacate any order made by the lower court or by any judge thereof in relation to the prosecution of the appeal, including any order fixing or denying bail or refusing to stay execution of sentence.

Rule 9.   Amicus Curiae.
      An attorney may appear as amicus curiae in any cause on appeal only by request of the appellate court or when accompanied by written consent of all parties to the case and presented within the time allowed for the filing of the brief of the party supported.

      When consent to the filing of a brief on amicus curiae is refused by a party to the case, a motion for leave to file may be presented to the appellate court as soon as practicable after the refusal of a party. Such motion shall concisely state the nature of the applicants interest, set forth facts or questions of law that have not been raised or reasons for believing that they will not adequately be presented by the parties, and their relevancy to the disposition of the case. A party served with such motion may reasonably file an objection concisely stating the reasons for withholding consent.

      Appearance as amicus curiae shall be by brief. The court may authorize or direct oral argument when it deems best.

Rule 10.   Substitution of parties.
     Upon the death or disability of a party or th replacement of a holder of a public office who in such capacity is a party in a cause pending on appeal, an order of substitution will be made by the appellate court upon a proper showing.

Rule 11.   Consolidation.
     Case may be consolidated for the purpose of appeal upon motion served and filed in accordance with these rules or upon the courts own motion.

Rule 12.   Questions Open on Appeals in
Trial Division of the State Court.
     The entire record of a case shall be open for consideration on appeal to the Trial Division of the Ponape State Court, including questions of law and of fact and exercise of discretion. Any sentence, judgment or order may be modified except that a sentence may not be increase unless a new trial has been granted.

Rule 13.   Appeals from Inferior State Courts and the
Ponape Land Commission, or its successor in law
to the Trial Division of the State Court.
     Appeals from the other courts and the Ponape Land Commission including its successor in law shall be considered on the basis of the record, the notice of appeal, and such written or oral argument as the parties may submit, unless the Trial Division orders otherwise on motion of a party or on its own motion.

     (a)   Record.   Upon receipt of a notice of appeal, the judge of the lower court having originally heard the matter, or the Senior Land Commissioner in the case of a Land Commission matter shall, in addition to all other statutory requirements, within twenty (20) days of receipt of the notice of appeal transmit the original file together with the record of any proceeding to the Trial Division of the State Court with copies served on all parties of record. In the event that there is no such record available, the judge in the case of a lower court or the Senior Land Commissioner in the case of the Land Commission shall prepare a summary of the evidence presented at the trial or the hearing and shall promptly furnish each party with a copy of the summary of the evidence so prepared. Within ten (10) days after service of the summary of evidence on  all the parties, the lower court judge or the Ponape Land Commission shall, if requested by a party, hold a hearing with all the parties to determine if any additions or correction need be made to the summary of evidence as prepared. The lower court or the Land Commission shall not permit any additional evidence not originally received in the matter to be received or to become part of the summary of evidence. After the summary of evidence has been rectified, the lower court judge or the Senior Land Commissioner shall promptly transmit the summary of evidence, together with such record and file of case to the Clerk of Court of the Ponape State Court.

     (b)   Correction of the Record.   If any party considers the Lower Courts or the Land Commissions record to be inaccurate or not complete enough, he shall, within ten (10) days of receipt thereof notify the other parties of the alleged error or omission and endeavor to secure a written agreement as to what correction or addition should be made in the record to make it agree with the facts. A copy of the notice shall also be filed with the Clerk of the Ponape State Court. If within ten (10) days all parties are unable to agree on such correction or addition, the party claiming error shall promptly arrange with the trial judge or the Senior Land Commissioner for a time and place for a hearing on the matter, and shall provide a reasonable notice to the other parties of the time and place of the hearing. After giving all parties an opportunity to be heard, the trial judge or the Land Commission shall then make a supplemental record correcting or adding to the original record if the lower court or the Land Commission is satisfied that the correction or addition requested is in accordance with the facts, or certifying the courts or commissions understanding of the facts in connection with the requested change in the record. If a party still feel the record, as supplemented, is incorrect or incomplete in any important respect he may , within ten (10) days of receipt of the supplemental record, request the Appellate Court to consider affidavits or evidence on the matter, and shall notify the other parties of his request.  

     (c)   Motions to Hear Evidence.   If any party believes that justice requires the Trial Division of the State Court to hear evidence on matters other than amendment of the record, or that the Trial Division reopen the case and try to de novo, such party shall notify the other parties and file his request together with the reasons therefor as soon as practicable.

     (d)   Discretion of Trial Division.   If any time while the appeal is pending, the Trial Division of the State Court becomes convinced that a change in the procedure outlined above is necessary in a particular case to accomplish justice, it may , after such notice, if any, as it deems justice requires, change the procedure. If an applicant is not represented by lawyer or a duly certified trial counselor, the Trial Division shall take care in such manner as it deems practical in each case, to see that every adverse party has an adequate opportunity to prepare to argue any ground of appeal advanced by the appellant and may, if it seems justice requires, adjourn the hearing for his purpose after the appellant has completed his oral argument, or may grant any adverse party permission to file a written argument within such further time as the court may fix.

Rule 14.   Appeal from the Trial Division
to the Appellate Division of the State Court.
     (a)   Order and Payment for Transcript.   Within thirty (30) days after filing his notice of appeal, any party desiring to raise an issue on appeal depending on the whole or any part of the evidence shall order and prepay the estimate expense of three (3) copies of the transcript of the evidence, one for the court, one for the party ordering them, and one for the opposite party or parties, in accordance with 6 TTC Sec. 405 (3); PROVIDED HOWEVER, that if a request for authorization to proceed without prepayment of fees, in accordance with 6 TTC Sec. 404 is filed within the thirty (30) days mentioned above, then the time for payment of the estimate cost shall extend until thirty (30) days after denial of the request, or, if the request is granted prepayment of the estimated cost is waived.

     (b)   Preparation of Record.   Upon learning that the appellant has ordered and prepaid the estimated expense of three (3) copies of the transcript of testimony, or has ordered them and prepayment thereof has been waived, the trial judge shall cause a transcript of any testimony which has been taken to be prepared and filed. This transcript may be either in question and answer form or in the form of a narrative covering the substance of all material testimony of each witness according to the manner in which the case was recorded. The Clerk of Courts where the motion of appeal was field shall then forward to the Clerk of Courts who has been designated by the Chief Justice to keep the records of the Appellate Division, all of the original papers in the case, all of the exhibits which are in such form that they may be easily transmitted in a flat file, a copy of the docket entries, and a certificate listing each of the papers forwarded and certifying that these constitute the complete file in the case. If there are any exhibits which are of such form that they cannot be easily transmitted in a flat file, the clerk shall so state in his certificate and briefly describe each of them, and state what disposition has been made of them, or that he is holding them pending further order of the court. The papers so forwarded and certified shall constitute the record of appeal, unless amended as provided in paragraphs.

     (c)   Notifications.   The clerk shall then notify each party, or his counsel, of the date on which he certified and forwarded the record on appeal.

     (d)   Correction of Record.   If any party considers that the record as certified by the Clerk of Courts is inaccurate or incomplete in any important respect, he shall notify the other parties of the alleged error or omission and endeavor to secure a written agreement as to what correction or addition should be made in the record. If such agreement is made , it shall be promptly filed with the Clerk of Courts designated to keep the records of the Appellate Division and shall thereupon become a part of the record. If all the parties are unable to agree upon such correction or addition, the party claiming the error shall arrange with the trial judge for a time and place of hearing on the matter and shall notify the other parties of that time and place. Any party unable to be present or represented may submit his views on the matter in writing at or before that time, if he so desires. After giving all parties opportunity to be heard, the trial judge will then make such changes in, or additions to, the record as the facts warrant, and will so notify each party or his counsel.  If any party still feels that the record, as amended by agreement of the parties or by the trial judge, is incorrect or incomplete in any important aspect, he may by written motion, supported by affidavits, request the Appellate Division to make further change, specifying particularly the change desired.

Rule 15.   Preparation of Briefs.
     An original and three (3) copies shall be filed with the Appellate Court unless the Appellate Court orders otherwise.

     (a)   Form and Content.   All briefs submitted by counsel who is a lawyer shall conform with the following requirements for form and content of briefs on appeal:

          (1)   The first page of each brief shall be the cover sheet. The cover sheet shall set forth the court to which appeal is taken, the full title of the case, the number assigned in the lower court, the number of the appeal, names of the appellant (s) and respondent (s), the party on whose behalf filed, a designation of the nature of the brief, the court from which appeal is taken, the name of the judge thereof, and the names addresses, and telephone numbers (if any) of counsel for the respective parties. The cover sheet shall not be numbered.

          (2)   Pages shall be of uniform size throughout each brief. The width of the pages shall not be less than eight inches nor more than eight-and-a-half inches. The length of the page shall not be less than 13 inches nor more than 14 inches.

          (3)   Typewritten briefs shall be in pica or elite type and double spaced, except that quotations of more than three typewritten lines in length may be indented and single-spaced with double spaces above and below each paragraph or less of quotation.

          (4)   The body of each brief shall be preceded by a Table of Contents which shall indicate the first page number of each separate item required to be in the brief by these rules.

          (5)   The body of each brief shall be preceded by a Table of Authorities. The Table of Authorities shall contain a list of all authorities referred to in the brief and shall indicate the page(s) of the brief where each authority is cited.

          (6)   In the body of all briefs, shall be a list of the questions presented in the appeal. This list shall set forth, in clear and concise terms, each question the party submitting the brief deems to be presented in the appeal.  Each question presented shall be set forth in a separate numbered paragraph.

          (7)   In the body of all briefs, shall be the Statement of the Case. This shall set forth, in clear and concise terms nature of the action, suit or proceeding, the relief sought, and, in criminal cases, the information including citation of the applicable statute (s); the nature of judgment, decree or other order sought to be reviewed, and , if trial was had whether it was before a court or a jury; a concise but complete statement of all the facts of the case material to the determination of the question(s) presented in narrative form; and any other matters necessary to inform the Appellate Court concerning the questions and contentions raised upon the appeal, insofar as such matters are a part of the record, with reference to the portion(s) of the record where such matters appear. The respondent may, in lieu of the above, state acceptance or the Statement of the Case as it appears in the appellants brief, or cite any alleged omission or inaccuracies therein, and may also state such relevant facts or other matters as may apply to the decision referring to pages of the record in support thereof, but without unnecessary repetition of the appellants statement. Points and authorities shall not be given in this portion of the brief.

          (8)   In the body of all briefs, shall be the argument. The argument shall be divided in to major sections, with a separate argument following each assignment or combination of assignments of error. Each such major section shall be immediately preceded by a caption, which shall indicate briefly the substance of each assignment or combination of assignments of error discussed thereunder.

     (b)   Trial Counselors Briefs.   Trial Counselors shall endeavor to the best of their ability to conform with the same requirement, except that their briefs may be submitted in longhand.

     (c)   Non-Lawyers.   If a party is not represented by a lawyer or trial counselor, the brief shall be in such form as directed by the Appellate Division.

     (d)   Language.   All written arguments must be either in Ponapean or accompanied by a Ponapean translation. Any expense for preparing such translation shall be born by the party submitting the argument and may be taxed as part of the costs.

     (e)   Signing.   All written arguments must be signed by a lawyer or a trial counselor unless the Appellate Division expressly grants permission in advance for the filing of a particular argument without such signature. By so signing any written argument or notice of appeal, as counsel for that appellant, the lawyer or trial counselor represents that in his opinion the appeal raises substantial questions of law.

Rule 16.   Filing of Briefs.
     (a)   Place of Filing.   All briefs and written arguments shall be filed with the Clerk of the Appellate Court as designated by the Chief Justice to have custody of records of the Appellate Division.

     (b)   Time of Filing.   Appellants brief shall be filed within sixty (60) days after the notification (service) of certification of the record by the Clerk of Courts for the Trial Division or after entry of the trial court order settling the transcript, whichever shall occur last; or if a transcript is not designated or is waived, then within sixty (60) days after the filing of the notice of appeal. In cases involving cross-appeals, or separate appeals, the party first filing a notice of appeal shall be considered the appellant under this rule. The respondents brief, if any, shall be served and filed forty-five (45) days after filing of the appellants brief.

     The appellant may serve and file a reply brief within twenty (20) days after the filing of respondents brief.

Rule 17.   Oral Argument.
     (a)   Submission Without Argument.   By stipulation of parties, any case may be submitted on briefs without oral argument or any party may waive oral argument unless the appellate court otherwise directs. The court on its own motion may order a case submitted on briefs without oral argument.

     (b)   Time and Place.   After the briefs have been filed by the parties as provided in these rules or after the time for filing such briefs has expired, the court will assign a time and place for oral argument and notify each party or his counsel. If any party is neither present nor represented at the oral argument, the court may proceed to hear the other parties, and then proceed to decide the appeal without further notice.

     (c)   Order of Argument.   The appellant shall be entitled to open and close and when there are cross-appeals, they shall be argued together and the cross-appellant shall be deemed a respondent.

     (d)   Length of Argument.   Unless otherwise ordered, the appellant shall not have more than thirty (30) minutes for argument, and the respondent shall also have not more than thirty (30) minutes; provided, the appellant may use not more then ten (10) minutes of the time allowed for argument to which to reply. Application for extension of time for argument must be made by motion at least five (5) days before the time set for argument.

Rule 18.   Failure to Comply with Rules.
     (a)   By Appellant.   Failure of appellant to comply with these rules after filing notice of appeal should be ground for such action, including dismissal of the appeal as the court may deem appropriate.

     If appellant fails to file a brief as provided in these rules and the court determines not to dismiss the matter for such failure, respondent shall be notified and allowed to file a brief as set forth in these rules.

     (b)   By Respondent.   If respondent fails to comply with the rules and the appellant has otherwise complied therewith, the cause will be submitted upon its merits as to respondent and the respondent will not be allowed to argue the case orally without permission of the court.

Rule 19.   Discretion of Appellate Division.
      If at any time while an appeal is pending the appellate court becomes convinced that a change in the procedure set forth in these rules is necessary in a particular case to accomplish justice it may alter such notice, if any, as it deems justice requires, change the procedure.
                                                                                                                                                                                                                                                                                                           
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