FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C1-2012
Civil Action No. 2011-1005

KINO RUBEN, next of kin to Ruben Kino Ruben,
Appellant,

vs.

CHUUK STATE, JIMMY JOSEPH, GIBSON KUN, STEPHAN SOS, JASON KONINOS, and KERSON RIZAL in his official capacity as Director of Public Safety, Department of Public Safety,
Appellees.
_____________________________________________

ORDER

Dennis K. Yamase
Associate Justice

Decided: March 18, 2013

APPEARANCES:

For the Appellant: Salomon Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Appellees: Sabino S. Asor, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Appellate Review
FSM Appellate Rules 3 and 4 govern how and when appeals are taken by the FSM Supreme Court appellate division. Ruben v. Chuuk, 18 FSM Intrm. 604, 606 (App. 2013).

Appellate Review - Notice of Appeal - Extension of Time
Although Appellate Rule 4(a)(5) allows for the extension of 30 days to file the notice of appeal, based on excusable neglect, after the 42 days to appeal has expired, the FSM Supreme Court appellate division may not extend the time for filing of a notice of appeal because any power to enlarge the time for filing the notice of appeal lies with the trial division, not the appellate division. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Notice of Appea - Extension of Timel
The court appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time to file a notice of appeal. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Notice of Appeal
When the record shows that the appellant never filed for an extension with the FSM Supreme Court trial level on or before December 28, 2012, which is 30 days after the expiration of the 42-day appeal period, the November 29, 2012 notice of appeal is untimely. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Notice of Appeal
A properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court, but the FSM Supreme Court appellate division has no authority to waive or extend Rule 4(a)'s time requirements or to grant a motion to extend time to appeal. Only the trial division has the authority to waive or extend the period to file the notice of appeal. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Decisions Reviewable; Appellate Review - Notice of Appeal
When no extension was requested, the late filing of the notice of appeal did not conform to the requirement under 4(a)(1), making the filing of the notice of appeal at the appellate level invalid and because the filing of the notice was improper, jurisdiction was never transferred from the trial to the appellate level. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. It is then properly dismissed. Ruben v. Chuuk, 18 FSM Intrm. 604, 607 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
An appellate court has jurisdiction over an appeal only if it is timely filed because the Rule 4(a)(1) time limit is jurisdictional, and if that time is not extended by a timely Rule 4(a)(5) motion to extend that time period, the appellate division is deprived of jurisdiction to hear the case. Ruben v. Chuuk, 18 FSM Intrm. 604, 607-08 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
Because the requirement that an appeal be timely filed is mandatory and jurisdictional, an untimely filed appeal must be dismissed. Ruben v. Chuuk, 18 FSM Intrm. 604, 608 (App. 2013).

Appellate Review - Dismissal; Appellate Review - Notice of Appeal
A single justice may dismiss an appeal for failure to comply with the appellate rules' timing requirements, including the timing requirement to file a notice of appeal. Ruben v. Chuuk, 18 FSM Intrm. 604, 608 (App. 2013).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

On February 29, 2012, the defendant at the trial level in this matter, Chuuk State (Chuuk), filed a Motion to Dismiss and Motion for Judgment on the Pleadings. An opposition was filed by the plaintiff, Kino Ruben (Ruben) on April 13, 2012. Chuuk's motion was granted on October 16, 2012, and on October 17, 2012, judgment was entered in favor of Chuuk. On November 29, 2012, a Notice of Appeal was filed by Ruben in the appellate division of the FSM Supreme Court.

II. Filing of the Notice of Appeal

According to the record, judgment in favor of Chuuk was entered on October 17, 2012 by the trial division of the FSM Supreme Court. The Notice of Appeal was filed on November 29, 2012. First, we look to Rule 3 and 4 of the FSM Rules of Appellate Procedure which govern how and when appeals are taken by the appellate division of this Court. Rule 3 states

FILING THE NOTICE OF APPEAL. An appeal permitted by these rules shall be taken by filing a notice of appeal with the clerk of the FSM Supreme Court trial division in the State in which the decision appealed from was made or, at the option of the appellant, directly with the clerk of the FSM Supreme Court appellate division. The notice of appeal must be filed within the time allowed by Rule 4 and the appellant shall serve copies of the notice upon all other parties to the litigation from which appeal is being taken.

Here, the notice of appeal was filed at the FSM Supreme Court in Chuuk, pursuant to Rule 3.

This rule then guides the Court to Rule 4, specifically Rule 4(a)(1)(A) which states

APPEALS IN CIVIL CASES.

In civil cases, by the filing of a notice of appeal as provided in Rule 3 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 trial divisions of the Federated States of Micronesia Supreme Court and the Kosrae State Court, and of the Chuuk State Supreme Court appellate division; from final decisions of the highest state courts in Yap and Pohnpei if the cases require interpretation of the national Constitution, national law, or a treaty; and in other cases where appeals to this Court from final decisions of the highest state courts are permitted under the Constitution of those states;

The forty-two (42) day requirement under Rule 4(a) requires the Court to look to Rule 26, which governs the computation and extension of time. Rule 26 states

COMPUTATION OF TIME. In computing any period of time prescribed or allowed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes Christmas, New Year's Day, Constitution Day (May 10), Independence Day (November 3) and any other day designated as a holiday by the President or the Congress of the Federated States of Micronesia.1

Because the judgment was entered on October 17, 2012, the calculation of the forty-two (42) day period begins on October 18, 2012. Forty-two (42) calendar days from October 18, 2012 falls on November 28, 2012.2

Further, Rule 4(a)(5) allows for the extension of thirty (30) days to file the notice of appeal, based on excusable neglect, after the forty-two (42) days has expired. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 94 (App. 2001); Jonas v. Mobil Oil Micronesia Inc., 2 FSM Intrm. 164, 166 (App. 1986). The Federated States of Micronesia Supreme Court appellate division may not enlarge the time for filing of a notice of appeal. Any power to enlarge the time for filing the notice of appeal lies with the trial division, not the appellate division. FSM Appellate Procedure Rule 4(a)(5) provides that the court appealed from, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time to file. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 & n.2 (App. 2000).

Here, the record shows that no such enlargement was ever filed by Ruben with the FSM Supreme Court in Chuuk at the trial level on or before December 28, 2012, which is thirty (30) days after the expiration of the forty-two (42) days (the tolling of the 30 days began tolling on November 29, 2012). Therefore, the filing of the Ruben's Notice of Appeal in this matter is untimely.

 III. Jurisdiction of the Appellate Division

The jurisdiction of the FSM Supreme Court appellate division is established in Article XI, Section 7 of the FSM Constitution. Generally, a properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999); Department of the Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 465, 466-67 (App. 2000). "The FSM Supreme Court appellate division has no authority to waive or extend Rule 4(a)'s time requirements or to grant a motion to extend time to appeal." Bualuay v. Rano, 11 FSM Intrm. 139, 146 (App. 2002).

Here, as indicated above, only the trial division has the authority to waive or extend the period to file the notice of appeal, which was not done by the appellant. Because no extension was requested, the filing of the notice of appeal did not conform to the requirement under 4(a)(1), making the filing of the notice of appeal at the appellate level invalid. Because the filing of the notice was improper, jurisdiction in this matter never transferred from the trial to the appellate level.

In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. It is then properly dismissed. Pohnpei v. AHPW, Inc., 13 FSM Intrm. 159, 161 (App. 2005); O'Sonis, 9 FSM Intrm. at 360. An appellate court has jurisdiction over an appeal only if it is timely filed. The time limit set by Rule 4(a)(1) is jurisdictional, and if that time is not extended by a timely motion to extend that time period under Rule 4(a)(5), the appellate division is deprived of jurisdiction to hear the case. Bualuay v. Rano, 11 FSM Intrm. at 145. Because the requirement that an appeal be timely filed is mandatory and jurisdictional, an untimely filed appeal must be dismissed. Id.

Here, the untimely filing of the notice of appeal results in a lack of jurisdiction to consider this matter by the appellate division. Accordingly, pursuant to the applicable rules in the FSM Rules of Appellate Procedure and the case laws cited above, this matter is hereby dismissed for lack of jurisdiction.

IV. Dismissal by a Single Justice

A single justice may dismiss an appeal for failure to comply with the appellate rules' timing requirements, including the timing requirement to file a notice of appeal. AHPW, Inc., 13 FSM Intrm. at 161; O'Sonis, 9 FSM Intrm. at 360. Because the appellate division lacks jurisdiction over this case based on the untimely filing of Ruben's notice of appeal, a single justice is hereby authorized to enter judgment in this matter.

V. Conclusion

Therefore, the Appellant's appeal is hereby dismissed for lack of jurisdiction.

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