Cite as Kihara Real Estate, Inc. v. Estate of Nanpei (II) ,
6 FSM Intrm. 354 (Pohnpei 1994)

[6 FSM Intrm. 354]



and NAMIO NANPEI, co-administrators,



Andon L. Amaraich
Associate Justice

Hearing:  March 4, 1994
Order Issued:  March 4, 1994
Opinion Entered:  March 18, 1994

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

For the Defendants:     Sungiwo Hadley, Trial Counselor
                                       Micronesian Legal Services Corporation
                                       P.O. Box 129
                                       Kolonia, Pohnpei FM 96941

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[6 FSM Intrm. 355]

Judgments ) Relief from Judgment
     A motion for relief of a partial summary judgment under Civil Rule 59(e) is subject to a strict time limit of 10 days which cannot be enlarged by the court.  Such a motion filed 10 months later is untimely.  This very strict deadline cannot be avoided by an unsupported assertion that a copy of the judgment was not served.  Kihara Real Estate, Inc. v. Estate of Nanpei (II), 6 FSM Intrm. 354, 355-56 (Pon. 1994).

Appeal and Certiorari
     Where summary judgment has been granted on the issue of liability, but the issue of damages is still pending, the right to appeal has not been lost even though 10 months have elapsed because no final judgment has been entered and the deadline for filing an appeal does not begin to run until a final judgment has been entered.  Kihara Real Estate, Inc. v. Estate of Nanpei (II), 6 FSM Intrm. 354, 356 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:
     On May 3, 1993, this court entered partial summary judgment against the defendants holding that they had breached a lease "option agreement " which gave the plaintiff, for a specified period of time, the right of first refusal to lease and develop certain lands owned by the defendants.  The court found that the defendants violated the option agreement by, inter alia, not committing to lease parcels that were listed in the agreement, and leasing parcels covered by the agreement to persons other than the plaintiff during the option period. On January 19, 1994, over ten months after the partial summary judgment was entered, the defendants moved to vacate the judgment.  After a hearing on the motion, the court issued an order on March 4, 1994, denying the defendants the relief requested.  At the time it issued the order the court stated that it would explain the basis for the action at a later date, and it does so now.

     1.  The defendants' motion did not state what FSM civil rule or other authority the motion to vacate was filed under.  Based on the court's research the only civil rule that might allow for a motion of the kind filed by the defendants is Rule 59(e).1  Motions under Rule 59(e), however, must be filed within ten days of the entry of that judgment.  Moreover, although the court usually has discretion to grant enlargements of time, Civil Rule 60(b) provides that no such extensions may be granted in the case of a motion under Rule 59(e).  Here the motion was filed ten months after the judgment was entered.  It is therefore untimely.

     Counsel for the defendants tries to excuse the delay by asserting that he was not served with the judgment.  However, the clerk's stamp on the order states that all parties were served by

[6 FSM Intrm. 356]

mail on May 3, 1993.  Moreover, counsel, while arguing that the defendants were not served, has not submitted any affidavit or other proof that service was not received.  The very strict deadline set by the civil rules for the filing of Rule 59(e) motions cannot be avoided by an unsupported assertion of the kind made by defendants' counsel.

     In addition, it is clear that even if the defendants' counsel was not properly served with the partial summary judgment decision, that does not fully account for his ten-month delay in filing the motion.  Counsel must have realized that partial summary judgment had been granted when, on October 3, 1993, the court moved to the next stage by scheduling a hearing on damages.  However, the defendants did not file their motion until five months after notice of the damages hearing was served, well beyond the ten-day deadline.  Therefore, even if, contrary to the Court's records, the defendants were not served with the order granting partial summary judgment, counsel for the defendants still delayed unreasonably in filing the motion to vacate.

     The defendants argue that the court must consider their motion because they have "now lost the right to appeal from the judgment as the time allowed for appeal ha[s] lapsed."  However, the deadline for filing an appeal has not even begun to run yet because the issue of damages is still pending and therefore no final judgment has been entered.  Kosrae v. Melander, 6 FSM Intrm. 257, 259 (App. 1993) (order granting partial summary judgment on the issue of liability is not final and is not appealable until after the damages issue is resolved).  The defendants are wrong in claiming that they have lost their chance to appeal to the appellate division.

     2.  At the hearing, the defendants' counsel took the position that the motion should be seen as one for "reconsideration," and that the court has discretion to entertain such a motion even if the ten-day period allowed by Rule 59(e) has passed.  However, counsel for the defendants did not cite any authority whatsoever for this proposition.  Assuming that the court has such discretion, it declines to exercise it in this case for two reasons.  First, as recounted above, counsel for the defendants delayed unreasonably by waiting over ten months before filing this motion.  Second, the defendants' counsel conceded at the hearing that no new arguments were being made on the motion for reconsideration that had not been made regarding the original summary judgment motion.  All of those arguments were fully considered when the court reached its decision the first time and the court sees no justification for reopening consideration of them.

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1.  The other possibility, FSM Civ. R. 60(b), allows for relief from final judgments only.  The judgment in this case was not final because the amount of damages was yet to be decided.