FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P12-2014

HERBERT GALLEN,			)						
)
Appellant,		)
)
vs.				)
)
DERESIHDA SANTIAGO,		)
)
Appellee.		)
___________________________________	)

	ORDER

	Decided:  May 26, 2017

BEFORE:

Hon. Dennis K. Yamase, Chief Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:	Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941

For the Appellee:	Salomon M. Saimon, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Appellate Review  Notice of Appeal
An untimely filing of a notice of appeal deprives the appellate division of jurisdiction.  Gallen v. Santiago, 21 FSM R. 258, 260 (App. 2017).

Appellate Review  Notice of Appeal
In an appeal from any court other than the FSM Supreme Court trial division, the appellant is required to file his notice of appeal 1) with the clerk of the FSM Supreme Court trial division in the state in which the decision appealed from was made or, at the appellant’s option, directly with the clerk of the FSM Supreme Court appellate division and 2) in the court appealed from.  Gallen v. Santiago, 21 FSM R. 258, 260 (App. 2017).

Appellate Review  Notice of Appeal

Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify, and transmit the record to the chief clerk of the FSM Supreme Court appellate division, and when no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of this duty.  Gallen v. Santiago, 21 FSM R. 258, 260 (App. 2017).

Appellate Review  Notice of Appeal
The timely filing of a notice of appeal is jurisdictional.  Gallen v. Santiago, 21 FSM R. 258, 261 (App. 2017).

Appellate Review  Notice of Appeal
Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Gallen v. Santiago, 21 FSM R. 258, 261 (App. 2017).

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 and it is then properly dismissed.  Gallen v. Santiago, 21 FSM R. 258, 261 (App. 2017).

Appellate Review  Notice of Appeal
An appeal to the FSM Supreme Court from another court is permissible, despite the notice of appeal not being directed to all of the appropriate courts as the rules require, when the appeal:  1) was otherwise valid and timely filed in the FSM Supreme Court appellate division; 2) steps were taken to correct the error; 3) the steps to correct the error were undertaken within the period of extension as allowed by the rules; 4) there was no prejudice to the opposing party; and 5) at the time, the appellant was acting as a self-represented litigant.  Gallen v. Santiago, 21 FSM R. 258, 261-62 (App. 2017).

Appellate Review  Notice of Appeal
An appellant should take steps to cure the defect of not having filed a timely notice in the court appealed from by seeking an extension of the time to appeal in the court appealed from.  This is only proper because it is more important that the court appealed from be informed that its decision has been appealed than that the appellate division knows an appeal is on the way.  Gallen v. Santiago, 21 FSM R. 258, 262 (App. 2017).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

Herbert Gallen (Gallen) has appealed to the FSM Supreme Court appellate division from an order of dismissal of the Pohnpei Supreme Court appellate division entered on July 15, 2014.

	I.  Issue Addressed

Whether the FSM Supreme Court appellate division has jurisdiction over an appeal in which the notice of appeal was timely filed with the FSM Supreme Court appellate division, but where the appellant did not file his notice of appeal in the court appealed from within forty-two days after the date of the entry of the order appealed from, and where appellant filed no motion to extend the time for filing a notice of appeal.

	II.  Background

On July 15, 2014, the Pohnpei Supreme Court appellate division issued an order of dismissal in Appeal No. 3-2007, finding that Gallen failed to timely appeal the trial court judgment.  Gallen then appealed to the FSM Supreme Court appellate division by filing a notice of appeal therein concurrently with a Motion to Appear Pro Se on August 22, 2014.  Gallen filed his notice of appeal in the Pohnpei Supreme Court on August 29, 2014.  By August 13, 2015 order, the FSM Supreme Court permitted Gallen’s appearance for this matter.  Attorney Yoslyn G. Sigrah then filed a Notice of Appearance of Counsel indicating Gallen had retained her as his counsel of record in this case.

On June 8, 2016, the FSM Supreme Court issued an Order to Produce Proof of Service or to Perfect Service because the record was not clear about whether the court appealed from was served the notice of appeal.  On July 7, 2016, Gallen filed his Proof of Service, showing that he served the notice of appeal on the Pohnpei Supreme Court on July 6, 2016.  Because it appeared that timely service had not been made on the Pohnpei Supreme Court, this Court then issued an Order to Brief the Court on why this matter should not be dismissed for lack of jurisdiction.  Gallen filed a Response to [the] Court Regarding Order to Brief the Court on November 14, 2016.  Attached thereto is a notice of appeal filed in Pohnpei Supreme Court dated August 29, 2014.

	III.  Analysis

FSM Appellate Rule 3(a) states, inter alia:

In an appeal from any court other than the FSM Supreme Court trial division, the appellant shall also serve a copy of the notice of appeal upon the court appealed from.  Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court appellate division deems appropriate, which may include dismissal of the appeal.

FSM App. R. 3(a) (emphasis added).

"[O]ur appellate rules, and the cases interpreting them, clearly enunciate that untimely filing of a notice of appeal deprives the appellate division of jurisdiction."  Akinaga v. Heirs of Mike, 15 FSM R. 391, 395 (App. 2007).  In an appeal from any court other than the FSM Supreme Court trial division, the appellant is required to file his notice of appeal (1) "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" and (2) in the court appealed from.  FSM App. R. 3(a); Tafunsak v. Kosrae, 6 FSM R. 467, 468-69 (App. 1994) (single justice order) ("[T]he proper procedure is to file a notice of appeal in both [the court appealed from] and the FSM Supreme Court, either with this Court’s trial division [in the state in which the decision appealed from was made] or the appellate division in Pohnpei."); Akinaga, 15 FSM R. at 394-95 (discussing Tafunsak and concluding that filing in both courts is required).

Filing the notice of appeal in the court appealed from ensures the clerk of that court is put on notice of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division pursuant to FSM Appellate Rule 11(c).  Where no service of the notice of appeal is made on the court appealed from, the clerk of the court appealed from has no way to know of the duty to prepare, certify and transmit the record to the chief clerk of the FSM Supreme Court appellate division.  And the court appealed from may wish to take some action, or to forgo taking some action, if it is aware the matter has been appealed.

More importantly, the timely filing of a notice of appeal is jurisdictional.  Under FSM Appellate Rule 4(a)(1), a notice of appeal in civil cases shall be filed "as provided in Rule 3 within forty-two (42) days after the date of the entry of the judgment or order appealed from."  FSM App. R. 4(a)(1); Kimoul v. FSM, 4 FSM R. 344, 346 (App. 1990).  Generally, a timely and properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court.  Department of the Treasury v. FSM Telecomm. Corp., 9 FSM R. 465, 466-67 (App. 2000) (citing Damarlane v. Pohnpei, 9 FSM R. 114, 119 (App. 1999); Damarlane v. United States, 8 FSM R. 14, 16 (App. 1997)).  However, in the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal and it is then properly dismissed.  O’Sonis v. Bank of Guam, 9 FSM R. 356, 360 (App. 2000).  In this matter, if Gallen failed to file a timely notice of appeal with the court appealed from pursuant to FSM Appellate Rules 3 and 4(a)(1), then the appellate court has no jurisdiction to hear the matter, and it will be dismissed.

There are several seminal FSM cases addressing the issue presented in this matter.  The first reported case, Tafunsak v. Kosrae, 6 FSM R. 467 (App. 1994) (single justice order), involved an appellant who did file a timely notice of appeal, but in Kosrae State Court, the court in which the trial level order appealed was rendered, and not in the FSM Supreme Court trial or appellate divisions.  Tafunsak, 6 FSM R. at 468.  That court held that "our rule clearly also requires that a notice be filed with either the trial division of this Court on Kosrae or our appellate division . . . [and that i]t is this additional requirement that appellant has not met . . . ."  Id. The court held that the procedural error did not warrant dismissal, "particularly since the Court has allowed appeals in the past in Kosrae cases where notice was filed only in state court."  Id.  The court, however, put future appellants on notice "that the proper procedure is to file a notice of appeal in both Kosrae state court and the FSM Supreme Court, either with this Court’s trial division in Kosrae or the appellate division in Pohnpei."  Id. at 468-69.

In Kosrae Island Credit Union v. Obet, 7 FSM R. 193 (App. 1995), where the appellant attempted to file his notice of appeal with the FSM Supreme Court trial division in Kosrae, but was wrongfully instructed by an employee of that court to file the notice in a different manner, the court held that dismissal of the appeal was unwarranted because the appellant should not bear the penalty of the court’s own failure.

The court also addressed the instant situation in Akinaga v. Heirs of Mike, 15 FSM R. 391 (App. 2007).  In that case,

Akinaga filed her first Notice of Appeal on March 30, 2006, 38 days after the Kosrae State Court’s February 20, 2008 entry of the judgment from which she [was] appealing.  While Akinaga filed this Notice of Appeal within 42 days of the Kosrae State Court’s entry of judgment, as required by FSM Appellate Rule 4, she failed to file the Notice with both the Kosrae State Court and with a division of this Court, as required by Appellate Rule 3.  Instead she filed the Notice only with the Kosrae State Court.  Akinaga filed a second Notice of Appeal with this Court’s appellate division in Pohnpei on April 18, 2006, 57 days following the Kosrae State Court’s entry of judgment.

Akinaga, 15 FSM R. at 394.  That court found it "significant that Akinaga did perfect her appeal within [the 72-day maximum period, with an Appellate Rule 4(a)(5) extension,] by properly filing her Notice of Appeal with our appellate division 57 days following the Kosrae State Court’s entry of judgment."  Id. at 395.  Accordingly, the court found that the appeal was

permissible, despite being directed to the wrong court, since this appeal: (1) was otherwise valid and timely; (2) steps were taken to correct the error; (3) the steps to correct the error were undertaken within the period of extension allowed by our rules; and (4) there was no prejudice to the opposing party.

Id.  The court warned that "[i]f this situation recurs in the future, the appellant should take steps to cure the defect by seeking an extension of the time to appeal in the court appealed from."  Id. (citing FSM App. R. 4(a)(5)).

Similar to Akinaga, this matter presents a situation in which a notice of appeal was filed on time within the 42 days following the order appealed from as prescribed by our rules.  Gallen’s error was not one of timeliness, but rather one of not filing a notice of appeal in all of the appropriate courts.  The Pohnpei Supreme Court’s order appealed from having been entered on July 15, 2014, Gallen’s notice of appeal was due no later than August 26, 2014.  Gallen timely filed his Notice of Appeal in the FSM Supreme Court appellate division on August 22, 2014.  However, he did not file a notice of appeal in the court appealed from until August 29, 2014.  Like the court in Akinaga, however, we find it significant that Gallen perfected his appeal within the 72-day maximum time to appeal by filing his notice of appeal in the Pohnpei Supreme Court 45 days following the Pohnpei Supreme Court’s order appealed from.1

Accordingly, in line with the court’s prior reasoning in Akinaga, we rule that this appeal to this court is permissible, despite not being directed to all of the appropriate courts as required by our rules, since this appeal: (1) was otherwise valid and timely filed in the FSM Supreme Court appellate division; (2) steps were taken to correct the error; (3) the steps to correct the error were undertaken within the period of extension as allowed by our rules; (4) there was no prejudice to the opposing party; and (5) at the time, Gallen was acting as a self-represented litigant.  The court notes again, however, that an appellant should take steps to cure the defect by seeking an extension of the time to appeal in the court appealed from, FSM App. R. 4(a)(5), if this situation occurs in the future.  This is only proper because it is more important that the court appealed from be informed that its decision has been appealed than that we know an appeal is on the way.

	IV.  Conclusion

For the reasons set forth above, we are satisfied that this appeal is properly before us.

Accordingly, now therefore it is hereby ordered that the appellate clerk of the Pohnpei Supreme Court prepare, certify, and transmit the record for Pohnpei Appeal Case No. 3-2007 to the FSM Supreme Court appellate division no later than sixty (60) days after receipt of this Order pursuant to FSM Appellate Rule 11(c).  Upon completion of assembly of the entire record, the Pohnpei Supreme Court clerk shall file with the chief clerk of the FSM Supreme Court appellate division a certificate stating that the record is ready for the purpose of the appeal.

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