FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. K6-2007

IN RE: PARCEL 79T11, HEIRS OF TULENSRU JERRY,
Appellants

ORDER OF DISMISSAL

Andon L. Amaraich
Chief Justice

Decided: July 14, 2008

APPEARANCES:
For the Appellants: Sasaki L. George, Esq.
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

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HEADNOTES

Appellate Review  Decisions Reviewable

Appeals may be taken from all final decisions of the Kosrae State Court within forty-two (42) days after the date of the entry of the judgment or order appealed from. In re Parcel 79T11, 16 FSM Intrm. 24, 25 (App. 2008).

Appellate Review  Decisions Reviewable

An order from the Kosrae State Court may be a final decision for the purposes of appeal. In re Parcel 79T11, 16 FSM Intrm. 24, 25 (App. 2008).

Appellate Review  Decisions Reviewable; Appellate Review  Dismissal

When the July 25, 2007 State Court order denying the appellants' motion for reconsideration ended all litigation on the underlying dispute in the Kosrae State Court, it is a final decision that triggered the beginning of the 42-day period for filing a notice of appeal, and when the notice of appeal was not filed within that time, the appeal will be dismissed and the clerk of court will be instructed to strike it from the docket. In re Parcel 79T11, 16 FSM Intrm. 24, 25 (App. 2008).

Appellate Review  Motions

The action of a single justice may be reviewed by a full panel of the appellate division. In re Parcel 79T11, 16 FSM Intrm. 24, 26 (App. 2008).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On June 4, 2008, the Court ordered Appellants to show cause why this appeal should not be dismissed and stricken from the docket due to their failure to timely file a notice of appeal. Appellants responded to the show cause order in a timely fashion, and their points and arguments are before the Court.

On March 26, 2007, the Kosrae State Court entered an order dismissing Appellants' appeal from the Kosrae Land Court, ruling that it lacked jurisdiction over the matter. On July 25, 2007, the State Court entered an order denying Appellants' motion to reconsider the dismissal, ending Appellants' avenues for legal redress in the State Court and leaving only the option of appealing the State Court's dismissal to the FSM Supreme Court.

FSM Appellate Rule 4(a)(1)(A) provides, in pertinent part, that "within forty-two (42) days after the date of the entry of the judgment or order appealed from, appeals may be taken . . . from all final decisions of . . . the Kosrae State Court." Appellants argue that the State Court never issued a final decision for purposes of triggering the 42-day period for filing a notice of appeal.

Primarily, there is an inherent inconsistency between Appellants' argument and the undisputed fact that Appellants filed a notice of appeal to this Court, as counsel for Appellants is surely aware that appeals to this Court from the State Court must be premised upon a final decision. Furthermore, Appellants' arguments to support their position fail. Appellants argue that the State Court failed to follow procedures detailed in Kosrae Civil Rules of Procedure 58 and 79(a), as required by FSM Appellate Rule 4(a)(6) for a final decision to be considered entered for purposes of triggering the 42-day appeal period. However, Rule 58 speaks only to entering judgments, and Appellants only contend that no judgment was entered pursuant to Rule 79(a). As the Appellants concede, and as is explicitly contemplated by FSM Appellate Rule 4(a)(1), an order from the State Court may be a final decision for the purposes of appeal. Appellants cite the case of Richmond Wholesale Meat Co. v. George, 11 FSM Intrm. 86 (Kos. 2002) to support their position that the State Court's order denying their motion to reconsider was not final for the purposes of appeal. The Richmond Wholesale Meat Co. case is not persuasive in the present matter, as it addresses the concept of a final decision in the narrow context of FSM Civil Rule of Procedure 60(b).

Because it ended all litigation on the underlying dispute in the State Court, the July 25, 2007 order from the State Court denying Appellants' motion for reconsideration is a final decision that triggered the beginning of the 42-day period for filing a notice of appeal. FSM App. R. 4(a)(1)(A); see Damarlane v. United States, 7 FSM Intrm. 202, 204 (App. 1995) (a final decision is one that leaves nothing open to further dispute and which ends the litigation on the merits)

It is hereby ordered that this appeal is dismissed and the Clerk of Court is instructed to strike it from the docket. FSM App. R. 27(c); Pohnpei v. AHPW, Inc., 13 FSM Intrm. 159, 161 (App. 2005) (in the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal and it is then properly dismissed; a single justice may dismiss an appeal for failure to comply with appellate rules' timing requirements, including the timing requirement to file a notice of appeal).

The action of a single justice may be reviewed by a full panel of the appellate division. FSM App. R. 27(c). If Appellants wish to request a full panel review of this order, they mus file their request within ten (10) days of this order being entered.

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