Cite as Bossy v. Wainit, 15 FSM Intrm. 30 (Chk. S. Ct. App. 2007)

[15 FSM Intrm. 30]

CIVIL APPEAL CASE NO. 04-2006

Argued: April 26, 2007
Decided: May 25, 2007

BEFORE:

Hon. Benjamin Rodriguez, Temporary Justice, Presiding*
Hon. Dennis K. Yamase, Temporary Justice**
Hon. Repeat Samuel, Temporary Justice***

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Associate Justice, FSM Supreme Court, Chuuk
***Attorney at Law, Weno, Chuuk
 

HEADNOTES

Appellate Review – Notice of Appeal

Counsel's failure to serve the notice of appeal on the appellee's counsel is not fatal since the Chuuk Appellate Rules require that the clerk of the court appealed from must serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, so if the appellee was not served a copy of the notice of appeal, it is not the appellant's fault, but an omission by the trial court clerk. Bossy v. Wainit, 15 FSM Intrm. 30, 32 (Chk. S. Ct. App. 2007).

[15 FSM Intrm. 31]

Appellate Review – Notice of Appeal

An appellant's filing of a notice of appeal in the appellate division is not fatal to his appeal since if a notice of appeal is mistakenly filed in the Chuuk State Supreme Court appellate division, the appellate division clerk must note thereon the date on which it was received and transmit it to the trial division clerk and it will be deemed filed in the trial division on the date so noted, and thus, if the notice of appeal was not transmitted to the trial division (to be served by the trial court clerk on the other party), it was an error of omission on the appellate clerk’s part, not the appellant’s. Bossy v. Wainit, 15 FSM Intrm. 30, 32 (Chk. S. Ct. App. 2007).

Appellate Review – Decisions Reviewable

The general rule is that appellate review of a trial court case is limited to the trial court's final orders and judgments. Final orders and judgments are final decisions. Bossy v. Wainit, 15 FSM Intrm. 30, 32-33 (Chk. S. Ct. App. 2007).

Appellate Review – Notice of Appeal

The timely filing of a notice of appeal from a final order or judgment is jurisdictional, and a notice of appeal filed before a final order or judgment has been entered is premature and untimely. The common exception is that a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order will be treated as filed after such entry and on the day thereof. Bossy v. Wainit, 15 FSM Intrm. 30, 33 (Chk. S. Ct. App. 2007).

Appellate Review – Decisions Reviewable; Appellate Review – Dismissal

When there is no indication from the record that the trial court decision had been announced before the February 20, 2006 notice of appeal was filed and the decision was not "announced" until the written final judgment was entered on April 10, 2006, the time to appeal that decision (and any interlocutory orders entered in the case before that decision) started running on April 10, 2006. Since no notice of appeal was filed after that date, the appellate court must dismiss the appeal as untimely filed no matter how meritorious the appellant's claims are since the court lacks jurisdiction. Bossy v. Wainit, 15 FSM Intrm. 30, 33 (Chk. S. Ct. App. 2007).

COURT'S OPINION

BENJAMIN RODRIGUEZ, Temporary Justice, Presiding:

On April 26, 2007, the appellee, Siana Wainit, filed her motion to dismiss this appeal.  At the hearing the same day, appellee's counsel appeared and the appellants’ did not.  The court therefore issued a written order that the appellants should file and serve their response to the motion no later than May 7, 2007 and that if the appellants responded, Wainit could file a reply within the next seven days.  We would then consider the motion submitted for decision and rule on it based on the filed papers and set such further proceedings as might be necessary.  The appellants filed their opposition on May 7, 2007.  Wainit did not file a reply.  The motion to dismiss is granted.  Our reasons follow.

I.

In 2005, Siana I. Wainit sued Unuchan Bossy and family over their alleged interference with Wainit's possession and ownership of land and filled land on Weno and their trespass on that land. The case was docketed as Civil Action No. 191-2005.  The Bossy defendants' counsel apparently filed motions to continue in October 2005, after which he left for medical treatment in Guam and later Hawaii.  On December 9, 2005, trial court Justice John Petewon set trial for January 30, 2006.  Trial

was held on that day without the presence of either the Bossy defendants or their counsel.  Their counsel returned to Chuuk in February 2006, and, on February 20, 2006, filed a motion to depose an elderly witness. Counsel then learned that the trial had already been set and held.  Later the same day, he filed a notice of appeal in the appellate division which stated,

that as counsel for the appellants, it is my intention to appeal the decision of the Trial Court to proceed with a hearing without me and my clients despite the fact that the court had in its possession a Motion for Continuance which was filed by me before the court hearing.

On April 7, 2006, the trial judge signed, and on April 10, 2006, the clerk entered the trial court judgment in Civil Action No. 191-2005, which the Bossy defendants’ counsel states he received May 9, 2006.  He states that he "determined that there was no need for a second notice of appeal" because at least part of the court's order "which was appealed was the mere fact that trial on the merits proceeded without the defendants and their counsel."  He further asserts that he had suggested to the trial judge that he recuse himself due to his relationship with the plaintiff's husband.

II.

Wainit moved to dismiss the appeal on the ground that the court lacks jurisdiction because 1) Bossy did not appeal the April 10, 2006 judgment; 2)  the appeal is an interlocutory one for which permission had not been granted under Appellate Rule 5(a); 3)  the notice of appeal was not served on Wainit, 4)  the notice of appeal was filed in the appellate division and not in the trial division as required; and 5)  Bossy failed to show that the trial court abused its discretion by holding trial on January 30, 2006.  Bossy's counsel responds that any and all blame rests solely upon him as counsel and asks that any reprimand or other appropriate action be imposed solely upon him and that the Bossy defendants be afforded the chance to be heard.

III.

Counsel's failure to serve the notice of appeal on the appellee's counsel is not fatal.  The Appellate Rules require that "[t]he clerk of the court appealed from shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant . . . ." Chk. App. R. 3(d).  If the appellee was not served a copy of the notice of appeal, it is not the appellant's fault, but an omission by the trial court clerk.  Nor is the appellant's filing the notice of appeal in the appellate division fatal since

If a notice of appeal is mistakenly filed in the State Court Appellate Division, the clerk of the State Court Appellate Division shall note thereon the date on which it was received and transmit it to the clerk of the State Court Trial Division and it shall be deemed filed in the State Court Trial Division on the date so noted.

Chk. App. R. 4(a)(1). If the notice of appeal was not transmitted to the trial division (to be served by the trial court clerk on the other party), it was an error of omission on the appellate clerk's part, not the appellant's.

IV.

It is undisputed that no final judgment had been entered in this case when the February 20, 2006 notice of appeal was filed.  This is thus an interlocutory appeal.  The general rule is that appellate review of a trial court case is limited to the trial court’s final orders and judgments.  Final orders and

judgments are final decisions. Chuuk v. Davis, 9 FSM Intrm. 471, 473 (App. 2000).  The timely filing of a notice of appeal from a final order or judgment is jurisdictional, Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002), and a notice of appeal filed before a final order or judgment has been entered is premature and untimely.  The common exception is that "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." Chk. App. 4(a)(2).  There is no indication from the record that the trial court decision in Civil Action No. 191-2005 had been announced before the February 20, 2006 notice of appeal was filed.  The decision was not "announced" until the written final judgment was entered on April 10, 2006. The time to appeal that decision (and any interlocutory orders entered in the case before that decision) started running on April 10, 2006.  No notice of appeal was filed after that date.

V.

The appellate court must dismiss an appeal that was untimely filed no matter how meritorious the appellant's claims are since the court lacks jurisdiction in such cases. The relief the appellants seek may be available to them through some other avenue, but it is not available in this untimely appeal.  Accordingly, this appeal is dismissed.