WINSTON KILLIN v. SEPE ANDREW

KOSRAE STATE COURT

FEDERATED STATES OF MICRONESIA

TRIAL DIVISION

Cite as Killin v. Andrew. ( Kosrae 1998)

[page 1]

WINSTON KILLIN,

Appellant,

vs.

SEPE ANDREW,

Appellee.

CIVIL ACTION NO. 49-93

ORDER

This Order addresses the following motions pending in this matter:

1. Appellant's Motion to grant brief and reliefs sought in the appeal, filed on January 7, 1997;

2. Appellee's Request for substitution of counsel, filed on January 16, 1997; and

3. Appellee's Motion for enlargement of time, filed on January 16, 1997. This Order also dismisses the Appeal for the reasons stated below.

PROCEDURE

This matter involves an appeal from a determination of ownership issued by the Kosrae State Land Commission regarding Parcel No. ()27-U-U2. The briefing schedule was established in October 1996 by written order. Appellant submitted a timely brief. Appellee failed to file a reply brief. Appellant then filed a Motion to grant the relief requested in his brief, based upon the Appellee's failure to file a brief. Appellee did not file an opposition to Appellant's Motion. Oral argument on the motion was set for January 15, 1997. Appellee's counsel failed to appear. The hearing was continued to January 16, 1997, with consent of the Appellee. At the hearing, Appellee was not permitted to argue, because she did not file responsive papers.

Also on January 16, 1997, a request for substitution of counsel for Appellee was tiled with the Court, proposing to substitute Canney Palsis, MLSC for Akiyusi Palsis as counsel of record for Appellee. On the same day. Mr. Canney Palsis filed a Motion for Enlargement to file an opposition to Appellant's Motion.

[page 2]

LEGAL ANALYSIS

1 Appellant's Motion to Grant Brief and Beliefs Sought in the Anneal.

Appellant's Motion requested the Court to grant the relief requested in his brief, due to Appellee's failure to file a reply brief. The failure of Appellee to file a timely reply brief may be deemed a consent to the appeal, however, proper grounds for the appeal must still exist before the Court can consider the appeal. See, Bank of Guam v. Nukuto, 6 FSM Intun 615 (Chk. 1994) (although failure to timely file an opposition is deemed a consent to a motion, proper grounds must exist for granting of the motion). Accordingly, Appellant's Motion to grant brief and relief's sought in the appeal is denied.

2 Appellee's Request for Substitution of Counsel

Appellee's request for substitution of counsel is granted. Canney Palsis of MLSC shall now appear as counsel of record for Appellee in place of Akiyusi Palsis.

The Court notes that Appellee's former counsel failed to tile the reply brief as ordered by the Court and as provided by the Kosrae Rules of Appellate Procedure. Appellee's former counsel also failed to request an extension of time to tile the reply brief, failed to communicate the substance of Appellant's motion to his client and failed to advise his client of his failure to prepare and file a brief on their behalf. This Court notes, but does not decide, that Appellee's former counsel's conduct in this matter probably constitutes negligence and violated the ABA Model Rules of Professional Conduct, Rules 1.1, 1.3 and 1.4. Violations of the Model Rules of Professional Conduct are subject to disciplinary action under GCO 1996 -1.

3 Appellee's Motion for Enlargement of Time.

Appellee's new counsel filed a Motion for enlargement of time to file an opposition to Appellant's Motion on January 16, 1997. Appellee's Motion for enlargement of time requested an extension of time until January 22, 1997 to file the opposition. Pursuant to Kosrae Rules of Appellate Procedure, Rule 26(b), this Court may grant an extension of time for good cause. The Court is given broad discretion to enlarge the time upon a showing of "good cause." Kimoul v. FSM, 4 FSM Intrm. 344 (App- 1990).

[page 3]

The Court heard the Appellant's argument on his motion at the haring on January 16, 1997. This hearing was held with the Appellee's consent and all counsel were present. Appellee's counsel at the hearing did not present reasons constituting . good cause. to permit late filing of an opposition to Appellant. s Motion for enlargement of time is denied.

4. Dismissal of Appeal.

Appellant filed a timely brief on November 25, 1996. In his brief, Appellant based his claims for the land at issue generally upon the theory of adverse possession.

Appellant's Brief does not comply with the Kosrae Rules of Appellate Procedure. It does not comply with Rule 28, which requires a statement of issues presented for review, and a conclusion stating the precise relief sought. Rule 28(a) and (e) requires that the appellant's arguments contain citations to the authoizties> statutes and parts of the record relied on. McCaffrey v. F M Supreme Court, 6 FSM Intrm. 279 (App. 1993). Here, Appellant made no references to the record which would support his claim for adverse possession. There were no specific references to the record provided in the brief. Compliance with the Kosrae Rules of Appellate Procedure is expected in appeals from decisions made by the Kosrae State; Land Commission.

This Court may dismiss Appellant's appal based on his failure to comply with the Kosrae Rules of Appellate Procedure. McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993) (Appellant failed to comply with Rules 28 and 30). Accordingly, based upon Appellant's failure to comply with the Kosrae Rules of Appellate Procedure, this appeal is hereby dismissed.

CONCLUSION

Appellant's Motion to grant brief and reliefs sought in the appeal is denied. Appellee's Motion for substitution of counsel is granted. Appellee's Motion for enlargement of time is denied. Appellant's appeal is hereby dismissed.

SO ORDERED this 6th Day of January 1998.

_______/s/____________

Lyndon L. Cornelius

Chief Justice

ENTERED this 7th Day of January 1998.

____/s/_______________

Chief Clerk of Court

Service on: Patrick Olter

Canney Palsis, MLSC

Akiyusi Palsis


	KOSRAE STATE COURT FEDERATED STATES OF MICRONESIA TRIAL DIVISION *Cite as Killin v. Andrew. ( Kosrae 1998)* [page 1] WINSTON KILLIN, Appellant, vs. SEPE ANDREW, Appellee. CIVIL ACTION NO. 49-93 ORDER This Order addresses the following motions pending in this matter: 1. Appellant's Motion to grant brief and reliefs sought in the appeal, filed on January 7, 1997; 2. Appellee's Request for substitution of counsel, filed on January 16, 1997; and 3. Appellee's Motion for enlargement of time, filed on January 16, 1997. This Order also dismisses the Appeal for the reasons stated below. PROCEDURE This matter involves an appeal from a determination of ownership issued by the Kosrae State Land Commission regarding Parcel No. ()27-U-U2. The briefing schedule was established in October 1996 by written order. Appellant submitted a timely brief. Appellee failed to file a reply brief. Appellant then filed a Motion to grant the relief requested in his brief, based upon the Appellee's failure to file a brief. Appellee did not file an opposition to Appellant's Motion. Oral argument on the motion was set for January 15, 1997. Appellee's counsel failed to appear. The hearing was continued to January 16, 1997, with consent of the Appellee. At the hearing, Appellee was not permitted to argue, because she did not file responsive papers. Also on January 16, 1997, a request for substitution of counsel for Appellee was tiled with the Court, proposing to substitute Canney Palsis, MLSC for Akiyusi Palsis as counsel of record for Appellee. On the same day. Mr. Canney Palsis filed a Motion for Enlargement to file an opposition to Appellant's Motion. [page 2] LEGAL ANALYSIS 1 Appellant's Motion to Grant Brief and Beliefs Sought in the Anneal. Appellant's Motion requested the Court to grant the relief requested in his brief, due to Appellee's failure to file a reply brief. The failure of Appellee to file a timely reply brief may be deemed a consent to the appeal, however, proper grounds for the appeal must still exist before the Court can consider the appeal. See, Bank of Guam v. Nukuto, 6 FSM Intun 615 (Chk. 1994) (although failure to timely file an opposition is deemed a consent to a motion, proper grounds must exist for granting of the motion). Accordingly, Appellant's Motion to grant brief and relief's sought in the appeal is denied. 2 Appellee's Request for Substitution of Counsel Appellee's request for substitution of counsel is granted. Canney Palsis of MLSC shall now appear as counsel of record for Appellee in place of Akiyusi Palsis. The Court notes that Appellee's former counsel failed to tile the reply brief as ordered by the Court and as provided by the Kosrae Rules of Appellate Procedure. Appellee's former counsel also failed to request an extension of time to tile the reply brief, failed to communicate the substance of Appellant's motion to his client and failed to advise his client of his failure to prepare and file a brief on their behalf. This Court notes, but does not decide, that Appellee's former counsel's conduct in this matter probably constitutes negligence and violated the ABA Model Rules of Professional Conduct, Rules 1.1, 1.3 and 1.4. Violations of the Model Rules of Professional Conduct are subject to disciplinary action under GCO 1996 -1. 3 Appellee's Motion for Enlargement of Time. Appellee's new counsel filed a Motion for enlargement of time to file an opposition to Appellant's Motion on January 16, 1997. Appellee's Motion for enlargement of time requested an extension of time until January 22, 1997 to file the opposition. Pursuant to Kosrae Rules of Appellate Procedure, Rule 26(b), this Court may grant an extension of time for good cause. The Court is given broad discretion to enlarge the time upon a showing of "good cause." Kimoul v. FSM, 4 FSM Intrm. 344 (App- 1990). [page 3] The Court heard the Appellant's argument on his motion at the haring on January 16, 1997. This hearing was held with the Appellee's consent and all counsel were present. Appellee's counsel at the hearing did not present reasons constituting . good cause. to permit late filing of an opposition to Appellant. s Motion for enlargement of time is denied. 4. Dismissal of Appeal. Appellant filed a timely brief on November 25, 1996. In his brief, Appellant based his claims for the land at issue generally upon the theory of adverse possession. Appellant's Brief does not comply with the Kosrae Rules of Appellate Procedure. It does not comply with Rule 28, which requires a statement of issues presented for review, and a conclusion stating the precise relief sought. Rule 28(a) and (e) requires that the appellant's arguments contain citations to the authoizties> statutes and parts of the record relied on. McCaffrey v. F M Supreme Court, 6 FSM Intrm. 279 (App. 1993). Here, Appellant made no references to the record which would support his claim for adverse possession. There were no specific references to the record provided in the brief. Compliance with the Kosrae Rules of Appellate Procedure is expected in appeals from decisions made by the Kosrae State; Land Commission. This Court may dismiss Appellant's appal based on his failure to comply with the Kosrae Rules of Appellate Procedure. McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993) (Appellant failed to comply with Rules 28 and 30). Accordingly, based upon Appellant's failure to comply with the Kosrae Rules of Appellate Procedure, this appeal is hereby dismissed. CONCLUSION Appellant's Motion to grant brief and reliefs sought in the appeal is denied. Appellee's Motion for substitution of counsel is granted. Appellee's Motion for enlargement of time is denied. Appellant's appeal is hereby dismissed. SO ORDERED this 6th Day of January 1998. _______/s/____________ Lyndon L. Cornelius Chief Justice ENTERED this 7th Day of January 1998. ____/s/_______________ Chief Clerk of Court Service on: Patrick Olter Canney Palsis, MLSC Akiyusi Palsis