APPEAL AND CERTIORARI

An appeal at the early stage of development of FSM judicial systems is a significant event calling for relatively large expenditure of judiciary resources. In order to preserve and uphold the legitimate right of parties to appropriate appeals, the FSM Supreme Court must be vigilant and exercise its inherent powers to avoid unnecessary expenditure of resources for premature or unauthorized appeals. FSM v. Yal 'Mad, 1 FSM Intrm. 196, 197-98 (App. 1982).

FSM Appellate Rule 9's purpose is to permit a defendant held in custody, or subjected to conditions of release, to receive expedited review of that restriction of his freedom. There is no suggestion in the rule nor in any other authority indicating that the government is entitled to appeal from the pretrial release of a defendant. FSM v. Yal'Mad, 1 FSM Intrm. 196, 198 (App. 1982).

In absence of express appellate division permission to appear without supervision of an attorney, the court will require all appellate level briefs and other documents to be signed by an attorney authorized to practice before the FSM Supreme Court. Any appellate submissions not so signed will be rejected. Alaphonso v. FSM, 1 FSM Intrm. 209, 230 n.13 (App. 1982).

The Trust Territory High Court has the legitimate authority to issue writs of certiorari for cases from the FSM Supreme Court; the Supreme Court cannot disregard an opinion resulting from such review. Jonas v. FSM, 1 FSM Intrm. 322, 326-29 (App. 1983).

A writ of certiorari is improvidently granted by the Trust Territory High Court unless a decision of the FSM Supreme Court affects the ability of the Secretary of the Interior to fulfill his responsibilities under Executive Order 11021. Jonas v. FSM, 1 FSM Intrm. 322, 329 n.1 (App. 1983).

A trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial. The court, however, should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. After appeal, if any, has been completed, and the greater charge is reversed on appeal, the trial court may then find it necessary to enter a judgment on the lesser charge. Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).

Rule 26(b) provides for enlargement of time for doing most acts but explicitly excludes enlargement of time to file notice of appeal. A court can grant no relief under Rule 26 for late filing of a notice of appeal. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

The interest protected by having exact time limits is in preserving finality of judgments. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

Where a party on appeal challenges the intervention in the appeal of another party, and the issue on the merits is decided in favor of the challenging party, no harm is visited on the challenging party by allowing the intervention, and the court is not required to rule on the propriety of that intervention. Innocenti v. Wainit, 2 FSM Intrm. 173, 180 (App. 1986).

In a new nation in which the courts have not yet established a comprehensive jurisprudence, where an issue is one of first impression and of fundamental importance to the new nation, the court should not lightly impose sanctions upon an official who pushes such an issue to a final court decision, and should make some allowance for wishful optimism in an appeal. Innocenti v. Wainit, 2 FSM Intrm. 173, 188 (App. 1986).

Only attorneys admitted to practice before the FSM Supreme Court or trial counselors supervised by an attorney admitted to practice may appear before the FSM Supreme Court on appeals from state court cases. Kephas v. Kosrae, 3 FSM Intrm. 248, 252 (App. 1987).

That fee arrangements had not been made is not good cause in support of a motion to enlarge time for filing appellee's brief when the motion is filed well after the brief was due and after oral argument was held. Paul v. Celestine, 3 FSM Intrm. 572, 574 (App. 1988).

The appellate court, for good cause shown, may upon motion enlarge the time prescribed by the appellate rules or by its order for doing any act, or may permit an act to be done after the expiration of such time. Kimoul v. FSM, 4 FSM Intrm. 344, 345 (App. 1990).

FSM Appellate Rule 26(b) gives the appellate court broad discretion to enlarge time upon a showing of good cause. Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

Where an appellate court has held that a trial judge is under a clear and non-discretionary duty to step aside from presiding over a case and the petitioner has a constitutional right to obtain compliance with that duty, all documents issued after the date of the appellate decision are null and void and shall be expunged from the record and the judge shall be enjoined from taking any further action as a judge in the case. Etscheit v. Santos, 5 FSM Intrm. 111, 113 (App. 1991).

When the language of an FSM appellate rule is nearly identical to a United States' counterpart, FSM courts will look to the United States federal courts for guidance in interpreting the rule. Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).

Conducting trials de novo and making findings of fact is normally the province of the trial court and not of the appellate division, which is generally unsuited for such inquiries. Moroni v. Secretary of Resources & Dev., 6 FSM Intrm. 137, 138 (App. 1993).

Where the appellant at oral argument contended that a grant of an interest in land was for an indefinite term and the court inquired of the appellant whether the grant was perpetual or forever the issue of whether a perpetual grant was for an indefinite term was fairly before the appellate court and could be decided by it even though the issue had not ben briefed nor had the appellee urged it. Nena v. Kosrae (II), 6 FSM Intrm. 437, 439 (App. 1994).

An appellate court cannot hold a party in contempt for violating a trial court's orders because his actions were not a violation of the appellate court's orders or done in the appellate court's presence. Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

For good cause shown, an appellate court may grant an enlargement of time for any act, except notice of appeal or times set by statute in administrative appeals, including a petition for rehearing. Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

Failure to locate counsel to prosecute appeal or to attempt to proceed pro se may, after notice, be deemed a voluntary dismissal of an appeal. Palsis v. Talley, 7 FSM Intrm. 380, 381 (App. 1996).

The appellate division does not have the power to enlarge time to petition for permission for an interlocutory appeal, but the trial division may re-enter its order with a prescribed statement thereby causing a new ten-day period to run because a trial court retains jurisdiction over its interlocutory orders and may reconsider any such order until a final judgment is entered. In re Estate of Hartman, 7 FSM Intrm. 409, 410 (Chk. 1996).

After a judgment has been appealed a trial court, without appellate court permission, has the power to both consider, and deny Rule 60(b) relief from judgment motions. A trial court, however, cannot grant a Rule 60(b) motion while an appeal is pending. If the trial court is inclined to grant the motion, it should issue a brief memorandum so indicating. Armed with this, movant may then request the appellate court to remand the action so that the trial court can vacate judgment and proceed with the action accordingly. Walter v. Meippen, 7 FSM Intrm. 515, 517-18 (Chk. 1996).

The time for making a motion for relief from judgment continues to run even while the case is on appeal. Walter v. Meippen, 7 FSM Intrm. 515, 518 (Chk. 1996).

When an appeal is taken from the trial court it is divested of authority to take any action except actions in aid of the appeal. This is a judge-made rule to avoid the confusion and inefficiency of putting the same issue before two courts at the same time. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 520, 522 (App. 1996).

When the attorney of record at the time of appeal obtains a later trial court order substituting another attorney who cannot address all the issues on appeal, the appellate court will direct the first attorney to proceed with the appeal. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 520, 522 (App. 1996).

If the FSM wishes to present the court with its views on an appeal it may file an amicus curiae brief as permitted by Rule 29 of the FSM Rules of Appellate Procedure. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 520, 522 (App. 1996).

An appellate court may affirm the decision of the trial court on different grounds. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 589 (App. 1996).

Where counsel have waived the issue of reliance damages and only argued specific performance at trial and on appeal the appellate court will leave the matter where counsel have placed it. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 623 (App. 1996).

As a general rule, a properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court, but a trial court may retain jurisdiction over the issue of attorneys' fees even though an appeal is pending on the merits of the case. Damarlane v. United States, 8 FSM Intrm. 14, 16 (App. 1997).

A trial court has jurisdiction to issue an order assessing costs, even though it was issued after the notice of appeal was filed. Damarlane v. United States, 8 FSM Intrm. 14, 17 (App. 1997).

A policy of judicial economy dictates against allowing further piecemeal appeals when the appeal in question arises from the same civil action and involves the same or similar questions of law. Damarlane v. United States, 8 FSM Intrm. 14, 17 (App. 1997).

An appeal is still pending on the day before the appellate opinion is filed even though the justices' signatures are dated earlier. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26 (App. 1997).

A civil case decided by the Chuuk State Supreme Court Appellate Division may be appealed to the FSM Supreme Court Appellate Division by writ of certiorari. Wainit v. Weno, 8 FSM Intrm. 28, 29 (App. 1997).

Chuuk State Supreme Court appellate rules may be amended by statute. Wainit v. Weno, 8 FSM Intrm. 28, 30 (App. 1997).

When a judgment is on appeal, a trial court, without appellate court permission, has the power to both consider and deny Rule 60(b) relief from judgment motions, but cannot grant such a motion while an appeal is pending. If inclined to grant the motion, the trial court issues a brief memorandum so indicating. Armed with this, the movant can then request the appellate court to remand the action so that judgment could be vacated. If the Rule 60(b) motion is denied, the movant may appeal from the order of denial. A trial court's jurisdiction to consider and deny a Rule 59(e) motion (motion to alter or amend judgment) after an appeal has been filed is similar to its power with respect to a Rule 60(b) motion. Stinnett v. Weno, 8 FSM Intrm. 142, 145 & n.1 (Chk. 1997).

Although in the absence of an order directing final judgment any order or decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights of all the parties, a trial court does not have the authority to vacate or amend the order from which an appeal is taken. Stinnett v. Weno, 8 FSM Intrm. 142, 145 (Chk. 1997).

When there is an Appellate Rule 4(a)(1)(B) appeal from the grant of an injunction the trial court loses its power to vacate the order when the notices of appeal are filed. However, as with Rule 59(e) and 60(b) motions, the trial court may consider and deny the motion, or, if it were inclined to grant the motion, so indicate on the record so as to allow the movant an opportunity to request a remand from the appellate division so that it could proceed to grant the motion. Stinnett v. Weno, 8 FSM Intrm. 142, 145 & n.2 (Chk. 1997).

When an appellate rule has not been construed by the FSM Supreme Court and it is nearly identical to a similar United States counterpart, we may look to U.S. practice for guidance. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

A motion to strike a single appellate justice's dismissal of an appeal may be set for oral argument and determination by an appellate panel. David v. Uman Election Comm'r, 8 FSM Intrm. 300d, 300f (Chk. S. Ct. App. 1998).

Appeals to the FSM Supreme Court appellate division from Chuuk State Supreme Court appellate division final decisions in civil cases, may be made by certiorari. The appellants' petition for certiorari may constitute their notice of appeal. Chuuk v. Ham, 8 FSM Intrm. 467, 468-69 (App. 1998).

An appellant who desired to proceed on an appeal in forma pauperis but failed to file an affidavit showing his inability to pay and who failed to bring his in forma pauperis motion to the attention of the trial division, is deemed to have abandoned his request or at least waived any right he may have had to proceed in forma pauperis. Reselap v. Chuuk, 8 FSM Intrm. 584, 585-86 (Chk. S. Ct. App. 1998).

When a transcript of the evidence in the Chuukese language has been on file for three years and the appellant has had access to the transcript for the purpose of prosecuting his appeal during the entire time and when nothing in the record indicates that the appellant requested an English language transcript a motion to enlarge time to file brief and to postpone oral argument on the ground that an English language transcript has not been received will be denied. Reselap v. Chuuk, 8 FSM Intrm. 584, 586 (Chk. S. Ct. App. 1998).

Because the Chuuk Constitution provides that Chuukese is the state language, but both Chuukese and English are official languages, a criminal appellant in the Chuuk State Supreme Court has no constitutional right to a transcript in both Chuukese and English. Reselap v. Chuuk, 8 FSM Intrm. 584, 586 (Chk. S. Ct. App. 1998).

Appellees' counsel's motion to continue oral argument because the appellees are unable to pay for a copy of the transcript may be denied when he made the same motion on the same ground during the previous appellate session one year earlier and the other parties oppose any further continuance. Sellem v. Maras, 9 FSM Intrm. 36, 37-38 (Chk. S. Ct. App. 1999).

A motion to reconsider a single justice appellate order in the Pohnpei Supreme Court is an application for review by a full appellate panel. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

Appellate Rule 4(a)(2), which allows a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order to be treated as filed after such entry and on the day thereof, is designed for cases of premature appeals where it is known that the final order or judgment to be entered will merely reflect the earlier decision. It specifically does not apply when Rule 4(a)(4) does. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

A Rule 60(b) motion is for relief from the judgment of a trial court, not the reconsideration of an appellate order. A motion to reconsider before the Pohnpei Supreme Court appellate division is not analogous to a relief from judgment motion. It is instead analogous to the types of motions to reconsider specifically mentioned in FSM Appellate Rule 4(a)(4). Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118-19 (App. 1999).

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).

At least three justices hear all appeals in the Chuuk State Supreme Court appellate division with the decision by a concurrence of a majority of the justices sitting on the appellate panel, but a single justice may make necessary orders concerning failure to take or prosecute the appeal in accordance with applicable law and procedure. Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

In the Chuuk Constitution there is a distinction between a "decision," which must be by a majority of the appellate justices assigned to hear the case, and "orders," which a single appellate justice may make. A "decision" means the final determination of the appeal. Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Sections 37 and 38(1) of the 1990 Chuuk State Judiciary Act preserve, just as the Chuuk Constitution does, the distinction between an "order" and a "decision." Specifically, a "decision" will be made by the entire appellate panel assigned to the case. Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

Although 4 F.S.M.C. 121 mandates the publication of FSM Supreme Court appellate opinions, confidentiality in the spirit of the rules can been maintained in a continuing attorney disciplinary matter by the omission of names and identifying characteristics. In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 175 (App. 1999).

Decisions of the Kosrae State Court may be appealed to the FSM Supreme Court appellate division. Kosrae v. Langu, 9 FSM Intrm. 243, 246 (App. 1999).

Appellate review, in all but narrowly defined, exceptional circumstances, should be postponed until final judgment has been rendered by the trial court. Hence the party requesting a writ of prohibition or mandamus has the burden of showing a clear and indisputable right thereto, and must show exceptional circumstances necessitating review before final judgment below. Federated Shipping Co. v. Trial Division, 9 FSM Intrm. 270, 273 (App. 1999).

When an FSM appellate rule has not be construed by the FSM Supreme Court and is similar or nearly identical to a U.S. counterpart, the court may look to U.S. practice for guidance. Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 n.1 (App. 2000).

An appellant should include in the caption only those persons or entities party to the appeal. In re Sanction of Woodruff, 9 FSM Intrm. 374, 375 (App. 2000).
An attorney may appeal a sanction, but only if proceeding under his or her own name and as real party in interest. In re Sanction of Woodruff, 9 FSM Intrm. 374, 375 (App. 2000).

The FSM Supreme Court trial division has no appellate or supervisory jurisdiction over either division of the Pohnpei Supreme Court, and no appeal lies from the Pohnpei Supreme Court to the FSM Supreme Court trial division. Damarlane v. Pohnpei Supreme Court Appellate Division, 10 FSM Intrm. 116, 120 (Pon. 2001).

Briefs and Record

The appellant's tardiness in filing his brief, with no explanation offered in response to a motion for dismissal or when the brief is submitted, constitutes a ground for dismissal of an appeal. FSM App. R. 31(a) & (c). Alaphonso v. FSM, 1 FSM Intrm. 209, 229-30 (App. 1982).

A delay of only two days in filing the appellate brief does not warrant dismissal of the appeal when there is no showing of prejudice. Kephas v. Kosrae, 3 FSM Intrm. 248, 253 (App. 1987).

Unexcused and extended delay in service of appellant's brief after certification of the record warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

Failure of the appellant to include a transcript in the record on an appeal based upon a claim of insufficiency of evidence warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

Where the delay was only ten days, no prejudice to the appellant has been suggested, the appellant has not opposed the motion for extension of time and the court finds a substantial public interest in having the position of the government considered in the criminal appeal, the court may appropriately enlarge the time and permit late filing of the government's brief. Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

The date of notice from the clerk that the record is ready, not the filing of the Certification of Record, triggers the running of the due date of an appellant's brief. Federated Shipping Co. v. Ponape Transfer & Storage, 5 FSM Intrm. 89, 91 (App. 1991).

It is within the court's discretion to dismiss an appeal where the appellant has failed to file a brief within the time prescribed when the appellee has moved for dismissal. In deciding a motion to dismiss an appeal under FSM Appellate Rule 31(c), the court may consider, among other things, the length of delay in filing briefs; nature of the reason for any filing delay; evidence of prejudice to the opposing party; and extent of the delaying party's efforts to correct procedural defects. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 227 (App. 1993).

Prejudice to an appellee may be shown by failure of an appellant to file a notice of issues presented and contents of the appendix as required under FSM Appellate Rule 30(b). Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 227 (App. 1993).

The service on opposing counsel of a signed and dated copy of a brief filed with the appellate division, although not explicitly stated in FSM Appellate Rule 31(d), is a procedural requirement of the FSM Supreme Court. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

The requirement under FSM Appellate Rule 30(a) of an appendix is only waived at the court's discretion and by court order. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Parties to an appeal must reference properly and clearly in their briefs the parts of the record containing material in support of their arguments, and unless the court has waived an appendix under Appellate Rule 30(f), references should be to the appropriate pages of the appendix. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

Facts asserted to excuse the filing of an appellate brief within the time prescribed must be proved. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 228 (App. 1993).

FSM Appellate Rule 28(a) requires, among other things, that arguments in an appellant's brief be supported by citations to authority; failure to provide such support will be deemed a waiver by appellant of the claims being argued. McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279, 283 (App. 1993).

A motion to correct the record on appeal must first be made in the trial court before application to the appellate court. Berman v. Santos, 7 FSM Intrm. 492, 493 (App. 1996).

If an appellant intends to urge on appeal that a finding or conclusion is unsupported by, or contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to that finding or conclusion. If the appellee then deems a transcript of other parts of the proceedings necessary, he must counter designate the additional parts the appellant should include in the record. If the appellant does not request such parts, the appellee may request the additional parts himself or move for a court order requiring the appellant to do so. Damarlane v. United States, 7 FSM Intrm. 510, 512 (App. 1996).

An appellant must include in the appendix to its opening brief all relevant and essential portions of the record, including any supporting opinion, findings of fact or conclusions of law filed or delivered orally by the court(s) below, but oral rulings are not required in the appendix if already contained in transcripts filed as a part of the record. The record must be sufficient to permit the court to insure that the issues on appeal were properly raised before the trial court. Damarlane v. United States, 7 FSM Intrm. 510, 512-13 (App. 1996).

Appellants are responsible for presenting to the court a record sufficient to permit it to decide the issues raised on appeal, and one which provides the court with a fair and accurate account of what transpired in the trial court proceedings. Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

An appellant has the primary responsibility for including in the record all necessary parts of the transcript, and the appellant cannot shift his responsibility to the appellee by the simple device of failing to discharge it himself. It is the appellant who must insure an adequate record, and if the record fails to demonstrate error, the appellant cannot prevail. Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

An appellant's failure to include in the record relevant transcripts may be fatal to his appeal because when the appellants do not include evidence in the record, the presumption is that the evidence was sufficient to sustain the trial court's judgment. Damarlane v. United States, 7 FSM Intrm. 510, 513 (App. 1996).

Any appellant would be hard pressed to prove a finding of fact at trial was clearly erroneous without a transcript of the trial proceedings. Berman v. Santos, 7 FSM Intrm. 624, 627 (App. 1996).

The FSM government does not need leave of court to file an amicus brief. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 668 (App. 1996).

A transcript of at least part of the trial court proceedings is generally necessary if the appeal involves issues of fact or evidence. Damarlane v. United States, 8 FSM Intrm. 45, 53 n.6 (App. 1997).

When an appellant has failed to comply with the appellate rules' timing requirements for filing its opening brief, a single article XI, section 3 justice may, on his own motion, dismiss the appeal after the appellant has been afforded its constitutional due process right to notice and an opportunity to be heard. Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998).

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. After settlement and approval by the trial justice, this statement of the evidence shall be included by the clerk of the court appealed from in the record on appeal. When appellants have failed to avail themselves of this procedure to secure a record of the evidence for review on appeal such failure on their part gives no grounds for complaint for the absence of a record of the evidence for review by the appellate court. Lewis v. Haruo, 8 FSM Intrm. 300L, 300m (Chk. S. Ct. App. 1998).

When a transcript of the evidence in the Chuukese language has been on file for three years and the appellant has had access to the transcript for the purpose of prosecuting his appeal during the entire time and when nothing in the record indicates that the appellant requested an English language transcript a motion to enlarge time to file brief and to postpone oral argument on the ground that an English language transcript has not been received will be denied. Reselap v. Chuuk, 8 FSM Intrm. 584, 586 (Chk. S. Ct. App. 1998).

An appeal may be dismissed when the appellant has not ordered a transcript and no certificate has been filed that no transcript would be ordered and the appellee has filed a written motion to dismiss the appeal for appellant's failure to comply with the appellate rules. Nechiesom v. Irons, 8 FSM Intrm. 589, 590 (Chk. S. Ct. App. 1998).

An appeal may be dismissed when the appellants have been served with a notice of oral argument and briefing schedule which required appellant's brief to be filed no later than a certain date and appellants have filed no brief and no extension of time to do so was ever requested of or granted by the court and when the appellee has filed a written motion for dismissal on those grounds and when, at oral argument. appellants' counsel offered no reasonable justification for not filing a brief. Walter v. Welle, 8 FSM Intrm. 595, 596 (Chk. S. Ct. App. 1998).

An appellant must include a transcript of all evidence relevant to the trial court's decision if the appellant argues on appeal that a finding or conclusion is not supported by the evidence or is contrary to the evidence. The burden is on the appellant to ensure that he brings an adequate record to support his argument. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

In meeting the standard of review, the appellant must ensure an adequate record. If the record does not demonstrate error, the appellant cannot prevail. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

Rule 28(i) permits appellants to join in a single brief. Implicit in this rule is an appellant's right to file individually. The right to file an individual brief is not forfeited or waived by the filing of a joint notice of appeal. Chuuk v. Secretary of Finance, 9 FSM Intrm. 255, 257 (App. 1999).

An appellant has a right to file its brief individually, and does not waive this right by joining the other appellants in earlier appeal procedures. Prejudice to an appellee from the resulting two briefs can be eliminated by seeking any necessary enlargement of time to file its responding briefs. Chuuk v. Secretary of Finance, 9 FSM Intrm. 255, 257 (App. 1999).

It is the appellant's duty to prepare and file the appendix. But when the appellant has failed to prepare and file the appendix and the appellee instead does so, and the appellee prevails, the cost of producing copies of the appendix may be taxed in the appellee's favor. Santos v. Bank of Hawaii, 9 FSM Intrm. 306, 308 n.2 (App. 2000).

The appellate division has broad discretion to grant an extension of time to file a brief and appendix upon a showing of good cause. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

If an appellant fails to file a brief within the time provided by the rules, or within the time as extended, an appellee may move for dismissal of the appeal. Factors that a court may consider on a motion to dismiss an appeal under Rule 31(c) are the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason for appellant's failure to file on time; and extent of appellant's efforts in mitigation. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

While it is true that in an attorney sanction appeal many items usually placed in an appendix are not relevant to the appeal, many are, such as the docket sheet or trial court's certified list, the notice of appeal, and the final order appealed from; and those items, and any other documents in the record to which the appellant wishes to draw particular attention, should be included in the appendix, but irrelevant items may be omitted. In re Sanction of Woodruff, 9 FSM Intrm. 374, 375 (App. 2000).

An appellee who fails to file a brief will not be heard at oral argument except by the court's permission. In re Sanction of Woodruff, 9 FSM Intrm. 414, 415 (App. 2000).

Although certain consequences flow from the failure to file a brief, appellees' attorneys are not otherwise under an obligation to the court to file briefs, but may be under a professional ethical obligation to their clients to do so, or may be subject to malpractice liability if an appellee is in the end prejudiced by his attorney's failure to file. In re Sanction of Woodruff, 9 FSM Intrm. 414, 415 (App. 2000).

A trial court memorandum entered after entry of both a final order and a notice of appeal is not an action in aid of the appeal, especially when such a memorandum might necessitate an appellant having to seek leave to amend its issues on appeal or take some other action it would not have otherwise had to, and may be stricken from the appellate record. Department of the Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000).

Decisions Reviewable

For an interlocutory appeal, FSM Appellate Rule 5 must be read as requiring a prescribed statement from the trial court. Lonno v. Trust Territory (II), 1 FSM Intrm. 75, 77 (Kos. 1982).

The court will not issue a writ of certiorari to review the trial court's suppression of defendant's confession in a case in which no assignments of error are furnished to the court, although such decision effectively terminates the case because the government cannot continue its prosecution without the confession, and although no appeal is available to the government. In re Edward, 3 FSM Intrm. 285, 286-87 (App. 1987).

A petition for certiorari will not be granted unless it delineates the act or acts alleged to be in error with sufficient particularity to demonstrate material, harmful error. In re Edward, 3 FSM Intrm. 285, 288 (App. 1987).

There are no FSM statutory or constitutional provisions that expand or establish the grounds for a writ of certiorari beyond its customary scope. In re Edward, 3 FSM Intrm. 285, 289 (App. 1987).

Generally, an appeal from a ruling of a trial judge is to be taken only after completion of all trial proceedings, upon issuance of a final judgment. In re Main, 4 FSM Intrm. 255, 257 (App. 1990).

The appellate division of the Supreme Court of the FSM may accept direct filing of a case and an expedited briefing schedule may be established where there is limited time available and prompt resolution of the issues in the case is decidedly in the national interest. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 324 (App. 1990).

Where it is unclear as to what rights a state trial court found the appellants had and the FSM court is unequipped to define those rights, and when the FSM appellate panel remains unsatisfied that the due process issue was raised below, although not determinative these are additional factors militating against FSM Supreme Court, appellate division review of a state trial court decision. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322, 325 (App. 1992).

Although the FSM Supreme Court has the constitutional power to use its discretion to review a case from a state trial court, generally, proper respect for the state court requires that state appeal rights be exhausted before the FSM Supreme Court would grant appellate review especially when important state interests are involved. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 322, 324 (App. 1992).

Generally only final judgments or orders can be appealed, but the appellate division may, at its discretion, permit an appeal of an interlocutory order. The court, in exercising its discretion should weigh the advantages and disadvantages of an immediate appeal and consider the appellant's likelihood of success before granting permission. Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).

Where a court order takes no action concerning an existing injunction and states that it may modify the injunction depending on the happening of certain events, that order does not come within the provision of the rule allowing interlocutory appeals of orders granting, continuing, modifying, or dissolving, or refusing to dissolve or modify an injunction. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992).

The right to appeal an interlocutory order which affects an injunction is an exception to the general rule that permits appeals only from final decisions. The exception reflects the importance of prompt action when injunctions are involved since the threat of irreparable harm is a prerequisite to injunctive relief. Damarlane v. Pohnpei Transp. Auth., 5 FSM Intrm. 332, 334 (App. 1992).

The well established general rule is that only final judgment decisions may be appealed. A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. In re Extradition of Jano, 6 FSM Intrm. 23, 24 (App. 1993).

Certifications of extraditability are not final decisions of the trial court since the final decision-making authority rests with the Secretary of External Affairs. Therefore they are not appealable. In re Extradition of Jano, 6 FSM Intrm. 23, 25 App. 1993).

Judicial review of a certification of extraditability, although not appealable, is available to an accused in custody by seeking a writ of habeas corpus. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

Where the FSM statute governing extradition proceeding is silent on the appealability of extradition proceedings and where the statute has been borrowed from another jurisdiction where extradition proceedings are not appealable it is presumed that the meaning and application of the statute is as it was interpreted by the courts of the source. In re Extradition of Jano, 6 FSM Intrm. 23, 25 (App. 1993).

An appeals court has no jurisdiction over a motion for an injunction filed after final dismissal of the appeal case. Damarlane v. Pohnpei Transp. Auth. (II), 6 FSM Intrm. 167, 168 (App. 1993).

In civil cases appeals may be taken from all final decisions of the Kosrae State Court. Finality should be given practical rather than technical construction, however, a summary judgment on the issue of liability, is not final or appealable until after the damage issue is resolved. Giving the word "final" its ordinary meaning, a decision that does not entirely dispose of one claim of a complaint containing four cannot be said to be final. Kosrae v. Melander, 6 FSM Intrm. 257, 259 (App. 1993).

Under the FSM Constitution the FSM Supreme Court may hear cases on appeal from the highest state court in which a decision may be had if that state's constitution permits it. The Chuuk State Constitution permits such appeals, which, in civil cases, Chuuk statute provides be made by certiorari. Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

Because a decision of a single justice in the appellate division of the Chuuk State Supreme Court may be reviewed by an appellate panel of the same court it is not a final decision of the highest state court in which a decision may be had, which it must be in order for the FSM Supreme Court to hear it on appeal. Gustaf v. Mori, 6 FSM Intrm. 284, 285 (App. 1993).

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).

When an appeal from an administrative agency decision involves an issue of extreme time sensitivity and of national importance that ultimately would have to be decided by the appellate division the court may allow a direct appeal to the appellate division. Robert v. Mori, 6 FSM Intrm. 394, 397 (App. 1994).

The general rule is that appellate review of a trial court is limited to final orders and judgments. However, certain interlocutory orders involving injunctions, receivers and receiverships, and interlocutory decrees determining rights and liabilities in admiralty cases, are reviewable in the appellate division. In exceptional cases, the extraordinary writs of mandamus or of prohibition may be issued to correct a trial court's decisions before final judgment. Appellate review may also be granted when the trial court has issued an order pursuant to Appellate Rule 5(a). Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

"Direct" appeals to the appellate division have been limited to entire cases appealed from administrative agencies decisions. Etscheit v. Adams, 6 FSM Intrm. 608, 610 (App. 1994).

Civil case appeals to the FSM Supreme Court may be taken 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 from final decisions of the highest state courts are permitted under the Constitution of that state. A final decision is one which leaves nothing open to further dispute and which ends the litigation on the merits leaving the trial court with no alternative but to execute judgment. Damarlane v. United States, 7 FSM Intrm. 202, 203-04 (App. 1995).

A state appellate court opinion in response to questions of state law certified to it by the FSM Supreme Court trial division is not a final decision and therefore not reviewable by the FSM Supreme Court appellate division. Damarlane v. United States, 7 FSM Intrm. 202, 204 (App. 1995).

When no motion for relief from judgment was filed in the trial court and the appellant appealed from an order in aid of judgment, the appellate court cannot address the validity of the underlying judgment as the issue was never properly raised before the trial court. Kosrae Island Credit Union v. Obet, 7 FSM Intrm. 416, 419-20 (App. 1996).

On appeal, a party will be limited ordinarily, to the specific objections to evidence made at trial and the appellate court will consider only such grounds of objection as are specified. Rosokow v. Chuuk, 7 FSM Intrm. 507, 509 (Chk. S. Ct. App. 1996).

A party cannot raise an issue upon appeal that he did not raise at the trial level, simply because the result of not raising the issue dissatisfies him. Rosokow v. Chuuk, 7 FSM Intrm. 507, 509 (Chk. S. Ct. App. 1996).

A broadly stated affirmative defense not argued at trial and on which no evidence has been submitted and which was therefore summarily rejected by the trial court has not been preserved for appeal. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 618 (App. 1996).

A sanction against an attorney who is not a party to the underlying case is immediately appealable if the sanctioned attorney proceeds under her own name and as the real party in interest. In re Sanction of Berman, 7 FSM Intrm. 654, 656 (App. 1996).

An objection to the amount of a monetary sanction cannot be raised for the first time on appeal. In re Sanction of Berman, 7 FSM Intrm. 654, 658 (App. 1996).

When a judgment has been entered, executed, and paid into court, the order disbursing the executed funds is a final decision and appealable. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 668 (App. 1996).

A tentative agreement to a stipulated order cannot preclude a party from appealing the order actually entered by the trial court when it differs from the stipulation. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 669 (App. 1996).

The FSM Supreme Court's jurisdiction is derived from the FSM Constitution which grants the appellate division the jurisdiction to review cases heard in state or local courts if they require interpretation of the FSM Constitution, and a state constitution cannot deprive the FSM Supreme Court of this jurisdiction. Damarlane v. Pohnpei Legislature, 8 FSM Intrm. 23, 26-27 (App. 1997).

An order by a single justice of the Chuuk State Supreme Court dismissing an appeal is a final order that may be appealed to the FSM Supreme Court appellate division. Wainit v. Weno, 8 FSM Intrm. 28, 30 (App. 1997).

Pursuant to FSM Appellate Rule 4(a)(1)(B) the FSM Supreme Court appellate division has jurisdiction to hear an appeal from an interlocutory order granting a permanent injunction. Stinnett v. Weno, 8 FSM Intrm. 142, 145 n.2 (Chk. 1997).

If, on remand from an appeal to the trial court, all that is left for the administrative agency to do is ministerial, the order of remand is final. If the agency has the power and duty to exercise residual discretion, to take proof, or to make an independent record, its function remains quasi-judicial, and the remand order is not final. Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).

Ordinarily a judgment of reversal rendered by an intermediate appellate court which remands the cause for further proceeding in conformity with the opinions of the appellate court is not final and therefore, not appealable to the higher appellate court, so long as judicial action in the lower court is required. Youngstrom v. Phillip, 8 FSM Intrm. 198, 201 (Kos. S. Ct. Tr. 1997).

The general rule is that only final judgments can be appealed. There is no appealable final judgment when only liability and not damages decided. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

In order for the appellate division to hear an appeal in the absence of a final judgment there must be some other source of jurisdiction, such as FSM Appellate Rule 4(a)(1)(B) which allows appeals from FSM Supreme Court trial division interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

As a general rule in an interlocutory appeal of an injunction an appellate court concerns itself only with the order from which the appeal is taken, and reviews other issues only if they are inextricably bound up with the injunction. Thus an appellate court has jurisdiction to review a summary judgment on the merits when the appellants are subject to a permanent injunction which is inextricably bound up with the underlying summary judgment. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998).

It is unlikely that in paying the judgment an appellant would waive its appeal, so long as payment was made under protest. In holding that the right to appeal was not precluded by payment, the courts have sometimes noted that payment had been made under protest; conversely, in holding that the right to appeal was barred by payment, the courts have sometimes noted that payment had not been made under protest. Louis v. Kutta, 8 FSM Intrm. 460, 461 (Chk. 1998).

There is no persuasive authority that should a garnishee pay a judgment pursuant to a garnishment order, that the garnishee would waive its rights to appeal. Louis v. Kutta, 8 FSM Intrm. 460, 462 (Chk. 1998).

The FSM Supreme Court appellate division has jurisdiction over appeals from final decisions of the Chuuk State Supreme Court appellate division because the state constitution so permits. Chuuk v. Ham, 8 FSM Intrm. 467, 468 (App. 1998).

Appeals may be taken to the appellate division of the FSM Supreme Court from all final decisions of the trial division of the Kosrae State Court and from any other civil case if permitted as a matter of state law. Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

When no final judgment or decree has been entered an appeal may be taken from the Kosrae State Court from an interlocutory order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions; or, in a civil proceeding, when a justice has certified that an order not otherwise appealable involves a controlling question of law concerning which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance completion of the action. Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

An order directing the Kosrae Land Commission, a non-party, to complete the division of disputed land is not injunctive in nature, and is not a controlling question of law. Therefore the order is not appealable, and it should not be stayed pending any putative appeal. Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

With some exceptions, the FSM Supreme Court does not exercise jurisdiction over appeals that are not from final decisions. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 117 (App. 1999).

The FSM Supreme Court can hear appeals 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. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 117 (App. 1999).

A single justice order in the Pohnpei Supreme Court appellate division is not a final decision of the Pohnpei Supreme Court because it is subject to review by a full appellate panel of the Pohnpei Supreme Court. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

A single appellate justice might not be considered the highest state court when his orders are subject to review by a full appellate panel. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 n.3 (App. 1999).

A motion to reconsider dismissal of an appeal by the Pohnpei Supreme Court appellate division is relief under comparable rules of any state court from which an appeal may lie equivalent to motions under the rules specifically cited in FSM Appellate Rule 4(a)(4) because the motion seeks reversal or modification of an earlier dispositive order. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

A properly filed notice of appeal will not create subject matter jurisdiction in FSM Supreme Court when there is none, but it always has jurisdiction over an appeal to determine if it has subject matter jurisdiction. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 n.4 (App. 1999).

A notice of appeal filed in the FSM Supreme Court while a motion to reconsider is pending before the Pohnpei Supreme Court appellate division has no effect because it was prematurely filed. Jurisdiction was thus never transferred to the FSM Supreme Court appellate division. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999).

A party to an appeal in which the Chuuk State Supreme Court appellate division has rendered an appellate decision may appeal such decision to the FSM Supreme Court appellate division by certiorari, except in a criminal case in which the defendant may appeal as of right. Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

A petition for writ of certiorari that seeks to appeal an order by a single Chuuk State Supreme Court appellate justice is not an appellate decision. The FSM Supreme Court therefore lacks jurisdiction to consider it. Wainit v. Weno, 9 FSM Intrm. 160, 162 (App. 1999).

An action of a Chuuk State Supreme Court single appellate justice may be reviewed by the court. This provides a means whereby a single justice "order" may become the appellate panel's dispositive "decision." Wainit v. Weno, 9 FSM Intrm. 160, 162-63 (App. 1999).

Once an appellant has sought and obtained review of a single justice's order by the appellate panel of the Chuuk State Supreme Court appellate division, the FSM Supreme Court appellate division may then review that decision. At that point the FSM Supreme Court has jurisdiction to hear the appeal, but not before. Wainit v. Weno, 9 FSM Intrm. 160, 163 (App. 1999).

The FSM Supreme Court's appellate jurisdiction over matters decided by the Chuuk State Supreme Court originates in article XI, section 7 of the FSM Constitution. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 163, 164 (App. 1999).

In the Chuuk State Supreme Court appellate division the action of a single justice may be reviewed by the court. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 163, 164 (App. 1999).

The FSM Supreme Court does not have jurisdiction to consider an appeal from an order by a Chuuk State Supreme Court single justice denying a motion for a stay or injunction pending appeal because it is not from a final decision. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 163, 164 (App. 1999).

The general rule is that appellate review of a trial court is limited to final orders and judgments. A policy of judicial economy dictates against allowing piecemeal appeals. A final decision is one that leaves nothing open to further dispute and which ends the litigation on the merits, leaving the trial court with no alternative but to execute judgment. Santos v. Bank of Hawaii, 9 FSM Intrm. 285, 287 (App. 1999).

When a trial court has determined a party's liability for an attorney's fees sanction but has not determined the amount of that liability, it is not a final order because the trial court could not execute on the order when the amount of attorney fees had not been fixed. Only once the fees have been fixed will the order become final and appealable. Santos v. Bank of Hawaii, 9 FSM Intrm. 285, 287 (App. 1999).

An appeal dismissed because it is not from a final order is dismissed without prejudice to any future appeal made from the order once it has become final. Santos v. Bank of Hawaii, 9 FSM Intrm. 285, 288 (App. 1999).

The FSM Supreme Court appellate division may hear appeals in civil cases from all final decisions of the FSM Supreme Court trial division and from interlocutory orders involving injunctions, receivers and receiverships, decrees determining parties' rights and liabilities in admiralty cases, and any other civil case in which an appeal is permitted as a matter of law. Permission may also be sought for an interlocutory appeal pursuant to Appellate Rule 5(a). Chuuk v. Davis, 9 FSM Intrm. 471, 473 (App. 2000).

The general rule is that appellate review of a trial court is limited to final orders and judgments. Final orders and judgments are final decisions. Chuuk v. Davis, 9 FSM Intrm. 471, 473 (App. 2000).

When an appeal is from a trial court post-judgment order that does not make any specific order concerning how the judgment is to be satisfied, or what specific funds are to be used to satisfy the judgment, or specify the method that should be used to provide payment to the plaintiff, and that does not make a specific finding about the fastest way for the judgment to be paid, and which, by its terms, extends only for two months when the trial court would then take further action, if necessary, it is not appeal from a final decision and will be dismissed. Chuuk v. Davis, 9 FSM Intrm. 471, 473-74 (App. 2000).

When even if the court reversed the garnishment order, any relief it could grant the FSM on the sovereign immunity issue would be ineffectual since 6 F.S.M.C. 707 makes the FSM no longer subject to garnishment of funds it owes to a state, and when, although the general rule is that the payment of a judgment does not make an appeal moot, the FSM has stated that it will not seek repayment of the funds that it paid the plaintiff, the FSM would have no interest in the case's outcome and the issues it raised on appeal are moot. FSM v. Louis, 9 FSM Intrm. 474, 482-83 (App. 2000).

When other trial division cases recognize the principle of sovereign immunity and the trial court decision appealed from only observed that in the absence of a specific expression by the legislature, sovereign immunity would not prevent the court from garnishing property held by the FSM for a state, when the constitutionality of the FSM's sovereign immunity statute was not before the court, and when the FSM served only as a mere garnishee in a situation which Congress has prevented from recurring by the enactment of 6 F.S.M.C. 707, the trial court decision will not effect future litigation involving the FSM and the FSM's appeal is thus moot. FSM v. Louis, 9 FSM Intrm. 474, 483-84 (App. 2000).

When it appears that a case comes before the FSM Supreme Court appellate division as a final decision entered by the Chuuk State Supreme Court appellate division, the review of such a decision may be had before the FSM Supreme Court appellate division. Bualuay v. Rano, 9 FSM Intrm. 548, 549 (App. 2000).

When, on August 12, 1998, the trial court entered a judgment on four claims pursuant to FSM Civil Rule 54(b) that stated that "there is no just reason for delay," and expressly directed entry of judgment as to the four claims, then that judgment is final and appealable, and the time to appeal began to run as of the date of the entry of the judgment, August 12, 1998. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 94 (App. 2001).

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. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001).

An issue raised for the first time on appeal is waived. An exception to this rule is in the case of plain error, or error that is obvious and substantial and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001).

Dismissal

The appellant's tardiness in filing his brief, with no explanation offered in response to a motion for dismissal or when the brief is submitted, constitutes a ground for dismissal of an appeal. FSM App. R. 31(a) & (c). Alaphonso v. FSM, 1 FSM Intrm. 209, 229-30 (App. 1982).

A delay of only two days in filing the appellate brief does not warrant dismissal of the appeal when there is no showing of prejudice. Kephas v. Kosrae, 3 FSM Intrm. 248, 253 (App. 1987).

Unexcused and extended delay in service of appellant's brief after certification of the record warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

Failure of the appellant to include a transcript in the record on an appeal based upon a claim of insufficiency of evidence warrants dismissal of the appeal. Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

It is within the court's discretion to dismiss an appeal where the appellant has failed to file a brief within the time prescribed when the appellee has moved for dismissal. In deciding a motion to dismiss an appeal under FSM Appellate Rule 31(c), the court may consider, among other things, the length of delay in filing briefs; nature of the reason for any filing delay; evidence of prejudice to the opposing party; and extent of the delaying party's efforts to correct procedural defects. Nakamura v. Bank of Guam (I), 6 FSM Intrm. 224, 227 (App. 1993).

A party appealing a decision of the Kosrae State Court must file a notice of appeal with the state court and with the FSM Supreme Court, either with its trial division on Kosrae or with its appellate division. Where appellant's failure to timely and properly his notice of appeal in the FSM Supreme Court trial division on Kosrae was because of faulty instructions of a court employee, dismissal of the appeal is unwarranted. Kosrae Island Credit Union v. Obet, 7 FSM Intrm. 193, 194 (App. 1995).

When an appellant has failed to comply with the appellate rules' timing requirements for filing its opening brief, a single article XI, section 3 justice may, on his own motion, dismiss the appeal after the appellant has been afforded its constitutional due process right to notice and an opportunity to be heard. Ting Hong Oceanic Enterprises v. FSM, 8 FSM Intrm. 264, 265 (App. 1998).

When appellants to the Chuuk State Supreme Court appellate division have made little or no effort to comply with any of the requirements of Appellate Rule 10, their appeals are due to be dismissed. Iwenong v. Chuuk, 8 FSM Intrm. 550, 551 (Chk. S. Ct. App. 1998).

When, in a three-year old criminal appeal, notice was served requiring appellant's opening brief to be filed and served by a certain date and the notice further stated that failure to do so would be grounds for dismissal of the appeal, no brief was ever filed and a motion bordering on frivolous was filed for more time, the motion may be denied and the case is remanded to the trial division for additional proceedings, including sentencing, as is provided for by law. Reselap v. Chuuk, 8 FSM Intrm. 584, 586-87 (Chk. S. Ct. App. 1998).

An appeal may be dismissed when no action is taken beyond filing a notice of appeal, when no transcript is ordered and no certificate filed to the effect that no transcript would be ordered, and when notice was served, setting a date for oral argument and for filing appellant's opening brief, that stated that failure to do so would be grounds for dismissal. Os v. Enlet, 8 FSM Intrm. 587, 588 (Chk. S. Ct. App. 1998).

An appeal may be dismissed when the appellant has not ordered a transcript and no certificate has been filed that no transcript would be ordered and the appellee has filed a written motion to dismiss the appeal for appellant's failure to comply with the appellate rules. Nechiesom v. Irons, 8 FSM Intrm. 589, 590 (Chk. S. Ct. App. 1998).

An appellee's oral motion at oral argument to dismiss for appellant's failure to prosecute the appeal in accordance with the appellate rules may be denied because he has waived any objections by his delay in raising procedural matters until the time set for oral argument and by not complying with the appellate rule concerning motions. In re Malon, 8 FSM Intrm. 591, 592 (Chk. S. Ct. App. 1998).

An appeal may be dismissed when the appellants have been served with a notice of oral argument and briefing schedule which required appellant's brief to be filed no later than a certain date and appellants have filed no brief and no extension of time to do so was ever requested of or granted by the court and when the appellee has filed a written motion for dismissal on those grounds and when, at oral argument. appellants' counsel offered no reasonable justification for not filing a brief. Walter v. Welle, 8 FSM Intrm. 595, 596 (Chk. S. Ct. App. 1998).

A single justice may dismiss an appeal upon a party's failure to comply with the appellate rules' time requirements, including the time requirement to file the notice of appeal within 42 days after the entry of the judgment. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. It is then properly dismissed. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

If an appellant fails to file a brief within the time provided by the rules, or within the time as extended, an appellee may move for dismissal of the appeal. Factors that a court may consider on a motion to dismiss an appeal under Rule 31(c) are the length of delay in filing the brief; evidence of prejudice to the appellee; nature of the reason for appellant's failure to file on time; and extent of appellant's efforts in mitigation. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361 (App. 2000).

A practicing attorney is expected to know the rules and abide by them. Nevertheless, a preference exists for resolution of matters on the merits. Within the bounds of reason, and except where a specific rule, law, or conduct of a party or his counsel directs a different result, this preference should be given effect. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 361-62 (App. 2000).

The Chuuk State Supreme Court's authority to dismiss a case on appeal on procedural grounds under the Chuuk State Rules of Appellate Procedure is purely discretionary. In re Lot No. 014-A-21, 9 FSM Intrm. 484, 491 (Chk. S. Ct. Tr. 1999).

Notice of Appeal

Upon showing of excusable neglect or good cause, Rule 4(a)(5) permits extension of time for filing notice of appeal, upon motion made within 30 days after expiration of the 42 days prescribed in Rule 4(a)(1). Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

Rule 26(b) provides for enlargement of time for doing most acts but explicitly excludes enlargement of time to file notice of appeal. A court can grant no relief under Rule 26 for late filing of a notice of appeal. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

A court has no authority to grant enlargement of time to file notice of appeal pursuant to motion filed after the maximum period of 72 days. Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

Under the FSM Appellate Rule 4(a)(1), a notice of appeal must be filed within 42 days after entry of the judgment. Kimoul v. FSM, 4 FSM Intrm. 344, 346 (App. 1990).

The proper procedure, in accordance with Kosrae State law and the FSM appellate rules, in filing a notice of appeal from a decision of the Kosrae State Court is to file notice in both Kosrae State Court and the FSM Supreme Court, either with the trial division in Kosrae or directly with the appellate division. Tafunsak v. Kosrae, 6 FSM Intrm. 467, 468 (App. 1994).

A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. Election Commissioner v. Petewon, 6 FSM Intrm. 491, 498 (Chk. S. Ct. App. 1994).

For good cause shown, an appellate court may grant an enlargement of time for any act, except notice of appeal or times set by statute in administrative appeals, including a petition for rehearing. Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

A party appealing a decision of the Kosrae State Court must file a notice of appeal with the state court and with the FSM Supreme Court, either with its trial division on Kosrae or with its appellate division. Where appellant's failure to timely and properly his notice of appeal in the FSM Supreme Court trial division on Kosrae was because of faulty instructions of a court employee, dismissal of the appeal is unwarranted. Kosrae Island Credit Union v. Obet, 7 FSM Intrm. 193, 194 (App. 1995).

A properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court. The trial court is then divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it. Walter v. Meippen, 7 FSM Intrm. 515, 517 (Chk. 1996).

As a general rule, a properly filed notice of appeal transfers jurisdiction from the trial court to the appellate court, but a trial court may retain jurisdiction over the issue of attorneys' fees even though an appeal is pending on the merits of the case. Damarlane v. United States, 8 FSM Intrm. 14, 16 (App. 1997).

A trial court has jurisdiction to issue an order assessing costs, even though it was issued after the notice of appeal was filed. Damarlane v. United States, 8 FSM Intrm. 14, 17 (App. 1997).

Appeals to the FSM Supreme Court appellate division from Chuuk State Supreme Court appellate division final decisions in civil cases, may be made by certiorari. The appellants' petition for certiorari may constitute their notice of appeal. Chuuk v. Ham, 8 FSM Intrm. 467, 468-69 (App. 1998).

Appellate Rule 4(a)(2), which allows a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order to be treated as filed after such entry and on the day thereof, is designed for cases of premature appeals where it is known that the final order or judgment to be entered will merely reflect the earlier decision. It specifically does not apply when Rule 4(a)(4) does. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 118 (App. 1999).

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).

A properly filed notice of appeal will not create subject matter jurisdiction in FSM Supreme Court when there is none, but it always has jurisdiction over an appeal to determine if it has subject matter jurisdiction. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 n.4 (App. 1999).

A notice of appeal filed in the FSM Supreme Court while a motion to reconsider is pending before the Pohnpei Supreme Court appellate division has no effect because it was prematurely filed. Jurisdiction was thus never transferred to the FSM Supreme Court appellate division. Damarlane v. Pohnpei, 9 FSM Intrm. 114, 119 (App. 1999).

Generally, a notice of appeal acts to transfer jurisdiction from the trial court to the reviewing court, except for the trial court to take action in aid of the appeal, such as an application for release from jail pending appeal, a motion for stay, taxing costs, considering and denying (but not granting unless remanded) a Rule 60(b) relief from judgment motion. Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 198-99 (Chk. 1999).

A trial court is without jurisdiction or authority to strike a notice of appeal from the record no matter how inadequate the notice because it raises a question addressed to the appellate court's jurisdiction. Bank of Guam v. O'Sonis, 9 FSM Intrm. 197, 199 (Chk. 1999).

Rule 3(b) is permissive as to filing a joint notice of appeal. No provision in the rule makes this decision irrevocable. Chuuk v. Secretary of Finance, 9 FSM Intrm. 255, 257 (App. 1999).

Rule 28(i) permits appellants to join in a single brief. Implicit in this rule is an appellant's right to file individually. The right to file an individual brief is not forfeited or waived by the filing of a joint notice of appeal. Chuuk v. Secretary of Finance, 9 FSM Intrm. 255, 257 (App. 1999).

Even if the post-judgment motion for attorney's fees had been made within ten days of the judgment, it would not have been efficacious to extend the time for filing the notice of appeal. An attorney's fees motion is not one of the motions enumerated in Rule 4(a)(4) which changes the benchmark time extending the time for filing the notice of appeal. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

A post-judgment motion for supplemental attorney's fees is not a motion to alter or amend judgment under FSM Civil Procedure Rule 59(e), and does not extend the time for the filing of the notice of appeal under Appellate Procedure Rule 4(a)(4). O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 359 (App. 2000).

A single justice may dismiss an appeal upon a party's failure to comply with the appellate rules' time requirements, including the time requirement to file the notice of appeal within 42 days after the entry of the judgment. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

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).

In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. It is then properly dismissed. O'Sonis v. Bank of Guam, 9 FSM Intrm. 356, 360 (App. 2000).

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 Telcomm. Corp., 9 FSM Intrm. 465, 466-67 (App. 2000).

The notice of appeal divests trial court of jurisdiction, except to take action in aid of the appeal. Examples of orders in aid of an appeal include, but are not limited to, applications for release from jail pending appeal, applications for stays pending appeal, taxation of costs on a judgment after notice of appeal filed, and considering and denying a Rule 60(b) relief from judgment motions (but not granting a Rule 60(b) motion unless case remanded). Department of the Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000).

A trial court memorandum entered after entry of both a final order and a notice of appeal is not an action in aid of the appeal, especially when such a memorandum might necessitate an appellant having to seek leave to amend its issues on appeal or take some other action it would not have otherwise had to, and may be stricken from the appellate record. Department of the Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 465, 467 (App. 2000).

Upon a showing of excusable neglect or good cause, the court appealed from may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by Rule 4(a). Hartman v. Bank of Guam, 10 FSM Intrm. 89, 94 (App. 2001).

In the absence of a notice of appeal filed within 42 days after entry of judgment, a putative appellant has a maximum of 72 days after entry of judgment in which to file, for good cause, a motion to extend the time for the filing of the notice of appeal. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 94 (App. 2001).

Rehearing

Rehearing denied after review of appellant's petition. Loch v. FSM, 1 FSM Intrm. 595, 595 (App. 1985).

Where the points of law and fact referred to in a petition for rehearing were not overlooked or misapprehended in the previous consideration of the appeal the petition will be denied. Carlos v. FSM, 4 FSM Intrm. 32, 33 (App. 1989).

Where appellants request a rehearing on the grounds that it is no longer equitable that the judgment have prospective application, and neither the appellate order of dismissal nor the judgment in the state court had by their terms any prospective application the motion will be denied. Damarlane v. Pohnpei Transp. Auth. (I), 6 FSM Intrm. 166, 167 (App. 1993).

After an appellate court has issued its opinion it may grant a petition for a rehearing if it has overlooked or misapprehended points of law or fact. Ordinarily, such petitions are summarily denied. Nena v. Kosrae (II), 6 FSM Intrm. 437, 438 (App. 1994).

A motion for reconsideration of denial of rehearing will be considered as a second petition for rehearing, and as such it cannot be granted it unless the court has overlooked or misapprehended points of law or fact. Nena v. Kosrae (III), 6 FSM Intrm. 564, 567 (App. 1994).

A court has the power to enlarge the time to petition for rehearing and to modify an erroneous decision although the time for rehearing has expired, and sometimes may consider petitions for rehearing filed even after rehearing has been denied. Nena v. Kosrae (III), 6 FSM Intrm. 564, 567-68 (App. 1994).

Ordinarily, petitions for rehearing are summarily denied, but when clarification may be helpful reasons may be given. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 482 (App. 1996).

Because dicta does not create a precedent and is not binding, no rehearing can be granted on dicta in an opinion. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 484 (App. 1996).

When an appellate court has ruled on those issues necessary to decide the appeal before it and it has neither overlooked nor misapprehended any points of law or fact, it may summarily deny a petition for rehearing. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 554, 554-55 (App. 1996).

Summary denial of a petition for rehearing is proper when the court has neither overlooked nor misapprehended any points of law or fact. Nahnken of Nett v. United States, 7 FSM Intrm. 612, 613 (App. 1996).

A summary denial of a petition for rehearing is proper when the court has ruled on those issues necessary to decide this appeal and has neither overlooked nor misapprehended any points of law or fact. Berman v. Santos, 7 FSM Intrm. 658, 659 (App. 1996).

There is no basis on which to grant a motion for rehearing when the court has not overlooked or misapprehended points of law or fact and has not relied on cases not on point and has not deprived appellants of their right to appeal specific costs. Damarlane v. United States, 8 FSM Intrm. 14, 18 (App. 1997).

A summary denial of a petition for rehearing is proper when the court has neither overlooked nor misapprehended any points of law or fact. In re Sanction of Berman, 8 FSM Intrm. 22, 23 (App. 1997).

There is no basis to grant a petition for rehearing when it does not make any argument or raise any issue not previously considered, and the petitioners had ample time to address those arguments during the pendency of the action. Damarlane v. United States, 8 FSM Intrm. 70, 71 (App. 1997).

The court may summarily deny a petition for rehearing and order the mandate issue immediately when it has carefully considered all of the appellants' arguments and has neither overlooked nor misapprehended any points of law or fact. Iriarte v. Etscheit, 8 FSM Intrm. 263, 264 (App. 1998).

Standard of Review

A criminal sentence may be affirmed on appeal when a review of the record reveals that the sentence is appropriate. Malakai v. FSM, 1 FSM Intrm. 338, 338 (App. 1983).

In considering challenges that there was insufficient evidence to justify the trial court's findings that the defendant aided and abetted, and is therefore criminally liable for the assaults with dangerous weapons, the FSM Supreme Court recognizes its appellate tribunal's obligation to review the evidence in the light most favorable to the trial court's factual determinations. The standard of review extends to inferences drawn from the evidence as well. Engichy v. FSM, 1 FSM Intrm. 532, 545 (App. 1984).

The standard of review is not whether the appellate court is convinced beyond a reasonable doubt but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984).

An appellate court should not overrule or set aside a trial court's finding of fact where there is credible evidence in the record to support that finding. Engichy v. FSM, 1 FSM Intrm. 532, 556 (App. 1984).

The trial court's findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture. Engichy v. FSM, 1 FSM Intrm. 532, 557 (App. 1984).

Normally the trial court fashions the remedies and sanctions for failure of a party to comply with discovery requirements. The exercise of the trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. Engichy v. FSM, 1 FSM Intrm. 532, 558 (App. 1984).

The standard to be applied in reviewing a trial court's finding of intention to kill is not whether the appellate court is convinced that there was intention to kill but whether the appellate court believes that the evidence was sufficient to persuade a reasonable trier of fact beyond a reasonable doubt of the intention to kill. Loch v. FSM, 1 FSM Intrm. 566, 575-76 (App. 1984).

The trial court finding of recklessness is a finding of fact which may not be set aside on appeal unless it is clearly erroneous. FSM Civ. R. 52(a). Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 25 (App. 1985).

The appellate process contemplates that any issue brought before an appellate court will first have been ruled upon by a trial judge. Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986).

An issue not presented to and ruled upon by the trial court cannot properly come before the appellate division for review. In the absence of an objection in the trial court the appellate division will refuse to consider the issue. Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987).

A conviction for robbery is a finding which can only be reversed if the court's finding is clearly erroneous. Loney v. FSM, 3 FSM Intrm. 151, 155 (App. 1987).

The standard of review on appeal on the issue of the sufficiency of the evidence is very limited only findings that are clearly erroneous can be set aside. Opet v. Mobil Oil Micronesia, Inc., 3 FSM Intrm. 159, 165 (App. 1987).

Standard to be applied in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988).

The appellate court may notice error, even though not properly raised or preserved in the trial court, where the error affects the substantial rights of a minor under the particular circumstances of a case. In re Juvenile, 4 FSM Intrm. 161, 164 (App. 1989).

The general rule is that on appeal a party is bound by the theory advanced in the trial court, and cannot urge a ground for relief which was not presented there, particularly where the party had ample opportunity to raise the issues in the trial court instead of presenting them for the first time on appeal. Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990).

In reviewing a sentencing decision of a trial court, an appellate court should follow the standards generally applied in criminal appeals, upholding findings of fact supported by credible evidence but overruling those legal rulings with which the appellate court disagrees. Tammed v. FSM, 4 FSM Intrm. 266, 274 (App. 1990).

Normally the trial court fashions the remedies and sanctions for failure of a party to comply with discovery requirements and the exercise of the trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. Bernardo v. FSM, 4 FSM Intrm. 310, 313 (App. 1990).

For false evidence to lead to reversal of a conviction, there must be some reason to believe that the trier of fact may have been misled and that this may have contributed to the conviction. Bernardo v. FSM, 4 FSM Intrm. 310, 314 (App. 1990).

An appeal from the decision of the trial judge may be only on the grounds of abuse of discretion resulting from the justice exceeding constraints imposed by the parole statute, Pub. L. No. 5-24 (5th Cong., 1st Spec. Sess. 1987). Yalmad v. FSM, 5 FSM Intrm. 32, 34 (App. 1991).

A defendant that has failed to raise and preserve the issue has waived his right to object to the admission of evidence, but when a plain error that affects the constitutional rights of the defendant has occurred the court may notice the error. Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).

In a criminal case, the task of an appeals court is to determine whether the trier of fact could reasonably have been convinced of the charge beyond a reasonable doubt by the evidence. Tosie v. FSM, 5 FSM Intrm. 175, 178 (App. 1991).

The test on appeal is not whether the appellate court is convinced beyond a reasonable doubt, but whether the trial court acting reasonably is convinced. Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. FSM Crim. R. 52(a). Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

An issue raised in closing argument at trial can be properly brought before the appellate court. Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

The standard of review on a question of the sufficiency of the evidence is whether it is clearly erroneous. Senda v. Mid-Pac Constr. Co., 5 FSM Intrm. 277, 280 (App. 1992).

In reviewing the sufficiency of evidence to warrant conviction, the issue is whether the evidence, viewed in a light most favorable to the finding, would justify a finder of fact, acting reasonably, to conclude that guilt was established beyond a reasonable doubt. Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992).

In reviewing a criminal conviction on appeal the appellate court need not go beyond the standard of review in Engichy v. FSM, 1 FSM Intrm. 532, to require that the test be whether the trier of fact could reasonably conclude that the evidence is inconsistent with every hypothesis of innocence. Jonah v. FSM, 5 FSM Intrm. 308, 310-11 (App. 1992).

The appellate court will not decide a constitutional issue if not raised below and because unnecessary constitutional adjudication is to be avoided. Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992).

In order to overturn the trial judge's denial of a motion to recuse, the appellant must show an abuse of discretion by the trial judge. The appellate court will not merely substitute its judgment for that of the trial judge. Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

An abuse of discretion by the trial court occurs when its decision is clearly unreasonable, arbitrary, or fanciful; or it is based on an erroneous conclusion of law; or the record contains no evidence upon which the court could rationally have based its decision. Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

An issue not raised at trial cannot be introduced for the first time on appeal. Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992).

The proper standard of appellate review for a criminal conviction challenged for insufficiency of evidence is whether the appellate panel, in considering the evidence in the light most favorable to the trial court's findings of fact, determines that a reasonable trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt. Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992).

The standard of review of a trial court's factual findings is whether those findings are clearly erroneous. The appeals court cannot substitute its judgment for that of the trial judge but in reviewing the findings it may examine all of the evidence in the record in determining whether the trial court's factual findings are clearly erroneous, and if it is left with the definite and firm conviction that a mistake has been committed with respect to the findings, it must reject the findings as clearly erroneous. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 59 (App. 1993).

Clear error in key factual findings merits setting aside conclusions of law and is one factor indicating incorrect use of discretion. Kapas v. Church of Latter Day Saints, 6 FSM Intrm. 56, 60 (App. 1993).

Where no motion has been made to amend the complaint at the trial level and the issue was not tried with the express or implied consent of the parties the general rule is that one cannot raise on appeal an issue not presented in the trial court. Nena v. Kosrae (I), 6 FSM Intrm. 251, 253-54 (App. 1993).

Where the trial court found no negligence and the appeal court upon review of the record does not find the trial court's factual findings to be clearly erroneous the trial court's dismissal of the negligence claim will be affirmed. Nena v. Kosrae (I), 6 FSM Intrm. 251, 254 (App. 1993).

Where the trial court's finding that damages were not proven at trial is not clearly erroneous the appellate court will not remand to the trial court for further presentation of evidence on that issue. Wito Clan v. United Church of Christ, 6 FSM Intrm. 291, 292 (App. 1993).

Although, ordinarily, an issue must be raised at the trial level for it to be preserved for appeal, whether a court has subject matter jurisdiction is an issue that may be raised at any time. Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993).

In determining whether a trial court's findings are clearly erroneous, an appellate court must construe the evidence in the light most favorable to the appellee. A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Kinere v. Kosrae, 6 FSM Intrm. 307, 309 (App. 1993).

The fashioning of remedies and sanctions for a party's failure to comply with discovery requirements is a matter within the trial court's discretion and should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).

If a judge does not specifically rely on the objected to evidence, the appellate court must presume that he did not rely on that evidence and therefore that any error in admitting the evidence did not result in substantial hardship or prejudice to a party. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).

An appellate court should not set aside a trial court's finding of fact where there is credible evidence in the record to support that finding. The trial court, unlike the appellate court, had the opportunity to view the witnesses and the manner of their testimony. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).

A claim that a trial court's decision did not address all the issues raised is not a basis for remand as long as the trial judge made a finding of such essential facts as provide a basis for the decision. The test as to the adequacy of the findings is whether they are sufficiently comprehensive and pertinent to the issue to form a basis for the decision. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 349 (App. 1994).

It is not an abuse of the trial court's discretion for a trial court to admit testimony that is inconsistent with that witness's answer to an interrogatory. Admissions made in interrogatories are not binding and the answering party may introduce other evidence on the subject of the admissions at trial. Contradictions between a party's answers to interrogatories and court testimony go to the weight and credibility of the testimony, not to its admissibility. Conflicting testimony may be admitted, and it is the responsibility of the finder of fact to weigh all the answers and resolve the conflict. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 350 (App. 1994).

Where a party at trial claims surprise, and the judge offers that party a chance to cure any prejudice this might have caused and they make the tactical choice to decline the opportunity, it is a tactical choice the party must live with and is not a basis for reversal. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 351-52 (App. 1994).

Where there is no indication that the trial court relied on certain evidence, the presumption is there was no such reliance, and any error in its admission is not prejudicial. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 351 (App. 1994).

Where a trial court's decision does not state that it reached any conclusion about a certain disputed fact, the appellate court may presume that it was not a basis for the trial court's decision. Nakamura v. Bank of Guam (II), 6 FSM Intrm. 345, 352 (App. 1994).

Appeals of Rule 11 sanctions are reviewed under an abuse of discretion standard. Berman v. Kolonia Town, 6 FSM Intrm. 433, 436 (App. 1994).

The standard of review of a trial court's ruling on a motion for relief from judgment is whether the trial court has abused its discretion. Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 445 (App. 1994).

Whether the lower court erred by issuing a preliminary injunction that did not require the return of funds obtained in violation of a TRO involves a trial court's exercise of discretion and is reviewed using an abuse of discretion standard. Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Whether the lower court erred by not holding the appellee in contempt of court involves a trial court's exercise of discretion and is reviewed using an abuse of discretion standard. Onopwi v. Aizawa, 6 FSM Intrm. 537, 539 (Chk. S. Ct. App. 1994).

Because findings of fact shall not be set aside unless clearly erroneous an appellate court starts its review of a trial court's factual findings by presuming the findings are correct. The appellant's burden to clearly demonstrate error in the trial court's findings is especially strong when the findings are based upon oral testimony because, before reaching its conclusions as to the witnesses' credibility, the trial court had the opportunity to view the witnesses' demeanor as they testified, while the reviewing court has not. Cheni v. Ngusun, 6 FSM Intrm. 544, 546 (Chk. S. Ct. App. 1994).

An appellate court may set aside a trial court's factual findings as clearly erroneous when the factual finding was not supported by substantial evidence in the record, or when the factual finding was the result of an erroneous conception of the applicable law, or when after a consideration of the entire record the appellate court is left with a definite and firm conviction that a mistake has been made. Cheni v. Ngusun, 6 FSM Intrm. 544, 547 (Chk. S. Ct. App. 1994).

If no understanding by the parties appears in the record that evidence admitted at trial was aimed at an unpled issue, it is an abuse of discretion for a court to base its decision on issues not pled. An adverse party must have sufficient notice to properly prepare to oppose the claim. Apweteko v. Paneria, 6 FSM Intrm. 554, 557 (Chk. S. Ct. App. 1994).

A court commits reversible error by basing its decision on a theory of recovery that was not raised by the pleadings nor tried by consent or understanding of the parties. Apweteko v. Paneria, 6 FSM Intrm. 554, 558 (Chk. S. Ct. App. 1994).

A trial court's findings of fact shall not be set aside unless clearly erroneous, and the appellate court shall give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Emilios v. Setile, 6 FSM Intrm. 558, 560 (Chk. S. Ct. App. 1994).

A trial court's factual findings are presumed correct. An appellate court must be especially circumspect in reviewing a trial court for clear error when there was conflicting evidence presented on issues of fact because the trial court had the opportunity to observe the witnesses' demeanor while it has not. Emilios v. Setile, 6 FSM Intrm. 558, 560 (Chk. S. Ct. App. 1994).

If an appellant alleging clear error fails to show that the trial court's factual finding was not supported by substantial evidence in the record, or that the factual finding was the result of an erroneous conception of the applicable law, or that, if after a consideration of the entire record, the appellate court is not left with a definite and firm conviction that a mistake has been made, the appellate court can only affirm. Emilios v. Setile, 6 FSM Intrm. 558, 561 (Chk. S. Ct. App. 1994).

The standard of review for an appeal from the trial division's determination of an administrative agency appeal is whether the finding of the trial division was justified by substantial evidence of record. FSM v. Moroni, 6 FSM Intrm. 575, 577 (App. 1994).

An issue not presented to and ruled upon by the trial court cannot properly come before the appellate division for review. FSM v. Moroni, 6 FSM Intrm. 575, 579 (App. 1994).

Factual determinations of a trial court, such as the appropriate size and period for an award of child support, will be overturned on appeal only if the findings of the trial court are clearly erroneous. Youngstrom v. Youngstrom, 7 FSM Intrm. 34, 36 (App. 1995).

A court must deny a motion for summary judgment unless the court, viewing the facts presented and the inferences made in the light most favorable to the non-moving party, finds there is no genuine issue as to any material fact. Thus if the appellants can show there was a genuine issue of material fact then the trial court's summary judgment must be reversed. Luzama v. Ponape Enterprises Co., 7 FSM Intrm. 40, 48 (App. 1995).

The decision to certify a question to a state court lies wholly within the sound discretion of the trial court. Thus the standard of review of the decision not to certify a question is whether the trial court abused its discretion. Nanpei v. Kihara, 7 FSM Intrm. 319, 322 (App. 1995).

The choice to abstain from a decision, like the decision to certify a question, lies wholly within the sound discretion of the trial court. Thus the standard of review of the decision not to abstain is whether the trial court abused its discretion. Nanpei v. Kihara, 7 FSM Intrm. 319, 322 (App. 1995).

Issues of law are reviewed de novo on appeal. Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).

An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c) summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, review is de novo. The facts must be viewed in the light most favorable to the party against whom judgment was entered. Tafunsak v. Kosrae, 7 FSM Intrm. 344, 347 (App. 1995).

Whether a debtor has the ability to comply with an order in aid of judgment is a finding of fact, which will be set aside on appeal only if it is clearly erroneous. Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996).

In determining whether a factual finding is clearly erroneous, an appellate court must view the evidence in the light most favorable to the appellee, but it should not set aside a finding of fact where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon reviewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996).

Appellate courts may notice plain error where the error affects the substantial rights of the defendant. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 (App. 1996).

An abuse of discretion standard is used to review whether the elements of laches have been established, but the question of law whether it would be inequitable or unjust to the defendant to enforce the complainant's right is reviewed de novo. Nahnken of Nett v. Pohnpei, 7 FSM Intrm. 485, 489 (App. 1996).

The Chuuk State Supreme Court appellate division will affirm a trial court's findings of fact unless the findings are clearly erroneous. Rosokow v. Chuuk, 7 FSM Intrm. 507, 509 (Chk. S. Ct. App. 1996).

The appellate court applies de novo the same standard in reviewing a trial court's grant of summary judgment as that used by a trial court under Rule 56. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 585-86 (App. 1996).

When reviewing the grant of a motion to dismiss the appellate court must take as true the facts alleged and view them and their reasonable inferences in the light most favorable to the party opposing the dismissal. Nahnken of Nett v. United States, 7 FSM Intrm. 581, 586 (App. 1996).

Where the existence of a contract is at issue, the trier of fact determines whether the contract did in fact exist. The standard of review for findings of fact is whether the trial court's findings are clearly erroneous. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 620 (App. 1996).

Interpretations of contract terms are matters of law to be determined by the court, and are reviewed on appeal de novo. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 621 (App. 1996).

A trial court's qualification of a witness as an expert and the admission of his opinion testimony will not be reversed unless clearly erroneous. Pohnpei v. Ponape Constr. Co., 7 FSM Intrm. 613, 622 (App. 1996).

Rule 11 sanction orders are reviewed under an objective abuse of discretion standard. In re Sanction of Berman, 7 FSM Intrm. 654, 656 (App. 1996).

A denial of a motion to recuse may be reviewed by means of a petition for a writ of prohibition or mandamus. The standard of review is whether the trial judge abused his discretion in denying the motion to recuse. The petitioner must show that the trial judge clearly and indisputably abused his discretion when he denied the motion to disqualify. Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 4 (App. 1997).

A court grants judgment on the pleadings if, based on contents of the pleadings alone, it is apparent that either an affirmative defense completely bars plaintiff's claim, or that the sole defense relied upon by defendant is insufficient as a matter of law. An appellate court reviews motions for judgments on the pleadings de novo, as it does all rulings of law. Damarlane v. United States, 8 FSM Intrm. 45, 52 (App. 1997).

The appropriate standard of review when reviewing a trial court's finding on sufficiency of the evidence is whether the trial court's finding is clearly erroneous. A finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed. Damarlane v. United States, 8 FSM Intrm. 45, 53 (App. 1997).

Rule 11 sanction orders are reviewed under an abuse of discretion standard, using an objective standard, rather than assessing an attorney's subjective intent. Damarlane v. United States, 8 FSM Intrm. 45, 58 (App. 1997).

In an appeal of a criminal conviction, before the appellate court can conclude that a trial court error was harmless, the court must conclude that it was harmless beyond a reasonable doubt. Yinmed v. Yap, 8 FSM Intrm. 95, 99 (Yap S. Ct. App. 1997).

Rule 11 sanction orders are reviewed under an abuse of discretion standard. In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App. 1997).

The standard of review for a criminal contempt conviction, like the standard for any criminal conviction, is whether the appellate court can conclude that the trier of fact reasonably could have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Johnny v. FSM, 8 FSM Intrm. 203, 206 (App. 1997).

An appellate court will not reweigh the evidence presented at trial. Credibility determinations are uniquely the province of the factfinder, not the appellate court. Johnny v. FSM, 8 FSM Intrm. 203, 207 (App. 1997).

An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236 (App. 1998).

An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion as that initially employed by the trial court under Rule 56(c). Thus, the review is de novo. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998).

The appellate division will not set aside findings of fact unless clearly erroneous, and due regard will be given to the trial court's opportunity to judge the credibility of the witnesses. Marcus v. Suka, 8 FSM Intrm. 300a, 300b (Chk. S. Ct. App. 1998).

Due regard must be given to the opportunity of the trial judge to weigh the witnesses' credibility. During the testimony, a trial judge may take into account the witness's appearance, manner, and demeanor while testifying, his apparent frankness and intelligence, his capacity of consecutive narration of acts and events, the probability or improbability of the story related by him, the advantages he appears to have had for gaining accurate or retentiveness of his memory as well as the lapse of time affecting it, and even the intonation of his voice and his positiveness or uncertainty in testifying. It may affect the credibility of a witness that he is expressing his belief as to a particular matter, rather than his knowledge, or that he testifies positively rather than negatively; or that he has made prior statements which are inconsistent with his trial testimony. Marcus v. Suka, 8 FSM Intrm. 300a, 300b-0c (Chk. S. Ct. App. 1998).

To reverse the trial division's findings of fact, the appellate division must find that 1) the trial division's findings are not supported by substantial evidence; 2) there was an erroneous conception by the trial division of the applicable law; and 3) the appellate division has a definite and firm conviction that a mistake has been made. Marcus v. Suka, 8 FSM Intrm. 300a, 300c (Chk. S. Ct. App. 1998).

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. After settlement and approval by the trial justice, this statement of the evidence shall be included by the clerk of the court appealed from in the record on appeal. When appellants have failed to avail themselves of this procedure to secure a record of the evidence for review on appeal such failure on their part gives no grounds for complaint for the absence of a record of the evidence for review by the appellate court. Lewis v. Haruo, 8 FSM Intrm. 300L, 300m (Chk. S. Ct. App. 1998).

Findings of fact will not be set aside unless clearly erroneous, and due regard shall be given to the trial court's opportunity to judge the witnesses' credibility. The appellate court starts its review of a trial court's factual findings by presuming the findings are correct which means that the appellant has the burden to clearly demonstrate error in the trial court's findings. Lewis v. Haruo, 8 FSM Intrm. 300L, 300m-0n (Chk. S. Ct. App. 1998).

The trial court will be affirmed when the appellant, challenging the weight given a witness's uncorroborated testimony, has failed to furnish the appellate court with a means to review all the evidence presented to the trial justice and a nothing is found in a review of the record and briefs to indicate tat the trial justice's factual findings were clearly erroneous. Lewis v. Haruo, 8 FSM Intrm. 300L, 300m-0n (Chk. S. Ct. App. 1998).

In reviewing a criminal conviction against an insufficiency of the evidence challenge, the appellate court must ask whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence it had a right to believe and accept as true. Nelson v. Kosrae, 8 FSM Intrm. 397, 401 (App. 1998).

When facts not controverted are admitted, or have been assumed by both parties, the failure to make findings thereof does not necessitate a remand. Nelson v. Kosrae, 8 FSM Intrm. 397, 403-04 (App. 1998).

The proper standard of appellate review for a criminal conviction challenged for insufficiency of evidence is not whether the appellate court believes the defendant is guilty but whether there is evidence sufficient to convince a reasonable trier of fact of the defendant's guilt beyond a reasonable doubt. The appellate court must review the evidence in the light most favorable to the trial court's factual determination. A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard. Palik v. Kosrae, 8 FSM Intrm. 509, 512 (App. 1998).

An appellate court will not set aside a factual finding where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Palik v. Kosrae, 8 FSM Intrm. 509, 516 (App. 1998).

The standard of review of a trial court's adoption of a special master's report is whether the adoption of the special master's findings was clearly erroneous. This same standard of review applies to a special master's report. Thus, if a special master's report is clearly erroneous, then it, like a trial court opinion, may be set aside. Thomson v. George, 8 FSM Intrm. 517, 521 (App. 1998).

In determining whether a factual finding is clearly erroneous, an appellate court cannot substitute its judgment for that of the fact finder. The trial court's factual findings are presumed correct. A factual finding is clearly erroneous when the appellate court, after reviewing the entire body of the evidence and construing the evidence in the light most favorable to the appellee, is left with the definite and firm conviction that a mistake has been committed. Thomson v. George, 8 FSM Intrm. 517, 522 (App. 1998).

Insufficiency of the evidence argument is not available to criminal appellants when a transcript of all evidence relevant to such finding or conclusion is not included in the record on appeal. Iwenong v. Chuuk, 8 FSM Intrm. 550, 551 (Chk. S. Ct. App. 1998).

When Land Commission has received considerable credible and compelling evidence, the trial division's decision refusing to disturb the Land Commission's findings that there was substantial evidence to support the Land Commission's conclusion will not be overturned. Nakamura v. Moen Municipality, 8 FSM Intrm. 552, 554 (Chk. S. Ct. App. 1998).

An appellant may not complain of an error in his favor in the rendition of a judgment. Nakamura v. Moen Municipality, 8 FSM Intrm. 552, 554 (Chk. S. Ct. App. 1998).

A probate appeal may be remanded when a number of essential issues and facts have yet to be established and the ends of justice require that additional matters must be considered, including whether the appellants are proper parties to the proceedings and who are the beneficiaries or the exact persons entitled to share in the assets of the estate and what the proposed division of the assets is. In re Malon, 8 FSM Intrm. 591, 592 (Chk. S. Ct. App. 1998).

The standard for review of the exercise of discretion by the trial justice is the abuse of discretion standard because the trial judge has the opportunity to observe the demeanor and candor of the witnesses and is in the best position to make the determination on issues of fact. In re Ori, 8 FSM Intrm. 593, 594 (Chk. S. Ct. App. 1998).

Whether a trial court correctly used the balancing of factors in weighing enforceability of part of an illegal employment contract, or whether the hiring, being in violation of public policy is unenforceable, is a matter of law, which is reviewed de novo. FSM v. Falcam, 9 FSM Intrm. 1, 4 (App. 1999).

The standard of review of whether the balancing factors for weighing enforceability of part of an illegal employment contract were weighed properly is whether the trial court abused its discretion. FSM v. Falcam, 9 FSM Intrm. 1, 4 (App. 1999).

A review of the trial court's factual findings is done under the clearly erroneous standard. The appellant has the burden to clearly demonstrate error in the trial court's findings. The appellant has a very strong burden to overcome because the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnesses' credibility. Hartman v. Chuuk, 9 FSM Intrm. 28, 30 (Chk. S. Ct. App. 1999).

When appellants' claim to tidelands has no customary basis and they never had any rights to it, and the only issues raised on appeal, whether the tidelands in question could be transferred without the consent of all the lineage's adult members and whether the trial court's decision allowed American citizens to become owners of Chuukese tidelands, are not material and are hypothetical as to the appellants, the trial court will be affirmed. William v. Muritok, 9 FSM Intrm. 34, 35 (Chk. S. Ct. App. 1999).

When the trial court has carefully observed the demeanor of all the witnesses, the trial court will not be put in error unless its findings of fact are clearly erroneous. William v. Muritok, 9 FSM Intrm. 34, 36 (Chk. S. Ct. App. 1999).

A review of the trial court's factual findings is done under the clearly erroneous standard. The appellant has the burden to clearly demonstrate error in the trial court's findings. The appellant has a very strong burden to overcome because the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnesses' credibility. The appellate court does not have the same opportunity to view the witnesses and as a result, it must be especially circumspect in reviewing a trial court for clear error. Sellem v. Maras, 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999).

The appellate court begins its review of trial court rulings by presuming that the trial court's factual findings are correct. The trial court's grant or refusal to adopt an expert's opinion is a question of fact and factual questions are reviewed by this court under the clearly erroneous standard. Sellem v. Maras, 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999).

When the appellate court finds nothing in the record on appeal that contradicts the master's findings or the High Court judgment previously rendered on the issues of ownership of the land in question and the state trial court judgment appealed from is based solely on the previous High Court decision, the trial court will be affirmed. Bualuay v. Rano, 9 FSM Intrm. 39, 40 (Chk. S. Ct. App. 1999).

If the trial court based the sentence upon the defendant's background and potential, and the nature of the offense, such individualized sentencing decision would be entitled to the deference accorded to findings of fact. Cheida v. FSM, 9 FSM Intrm. 183, 187 (App. 1999).

When an appellant has failed to provide a transcript of the relevant evidence and failed to identify the portions of the record that support his argument, he has failed to demonstrate that the trial court has erred as a matter of law in imposing sentence, and the presumption is that the evidence was sufficient to sustain the trial court's judgment. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

In meeting the standard of review, the appellant must ensure an adequate record. If the record does not demonstrate error, the appellant cannot prevail. Cheida v. FSM, 9 FSM Intrm. 183, 189 (App. 1999).

In a criminal case, the appellate court may commute, reduce, or suspend the execution of sentence, but when the appellate court has held that the trial court did not abuse its discretion in considering and imposing its sentence on the defendant for the offense committed, it will find no way to commute, reduce, or suspend the sentence. Cheida v. FSM, 9 FSM Intrm. 183, 190 (App. 1999).

When a plaintiff has not been awarded damages, the question is not whether he made his case for damages with the requisite specificity, but whether he has shown entitlement to damages in the first instance. Wolphagen v. Ramp, 9 FSM Intrm. 191, 193 (App. 1999).

The standard of review on a question of the sufficiency of the evidence is whether the trial court's finding is clearly erroneous. When the trial court's finding that damages were not proved at trial is not clearly erroneous the appellate court will not remand to the trial court for further presentation of evidence on that issue. Wolphagen v. Ramp, 9 FSM Intrm. 191, 194 (App. 1999).

Contractual interpretation is a question of law to be reviewed de novo on appeal. Wolphagen v. Ramp, 9 FSM Intrm. 191, 194 (App. 1999).

Motions the trial court decided as a matter of law are issues of law and are reviewed de novo. Weno v. Stinnett, 9 FSM Intrm. 200, 206 (App. 1999).

The trial court abuses its discretion when its decision is clearly unreasonable, arbitrary, or fanciful. Weno v. Stinnett, 9 FSM Intrm. 200, 209 (App. 1999).

The standard of review for a decision not to abstain is that of abuse of discretion. Weno v. Stinnett, 9 FSM Intrm. 200, 210 (App. 1999).

Issues of law, such as whether cooks were permanent state employees in the legal sense such that they were entitled to all the protections afforded to them under the statute and regulations, are reviewed de novo on appeal. Kosrae v. Langu, 9 FSM Intrm. 243, 248 (App. 1999).

In reviewing the Land Commission's decision, the Kosrae State Court should merely consider whether the Land Commission exceeded its constitutional or statutory authority, has conducted a fair proceeding, has properly resolved any legal issues and has reasonably assessed the evidence presented. Isaac v. Benjamin, 9 FSM Intrm. 258, 259 (Kos. S. Ct. Tr. 1999).

The standard of review of a summary judgment on appeal is a de novo determination that there was no genuine issue of material fact and that the prevailing party was entitled to judgment as a matter of law. Department of Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000).

Motions that the trial court decided as a matter of law are issues of law, which an appellate court reviews de novo. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 410-11 (App. 2000).

Whether a trial court erred in dismissing a complaint for failure to state a claim is an issue of law, which an appellate court reviews de novo. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000).

Whether a trial court erred in denying leave to amend a complaint, is usually reviewed on an abuse of discretion standard, but when the denial is based on a legal conclusion, the review is de novo. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000).

An appellate court applies the same standard in reviewing a trial court's grant of a summary judgment motion that the trial court initially employed under Rule 56(c). An appellate court, viewing the facts in the light most favorable to the party against whom judgment was entered, determines de novo whether genuine issues of material fact are absent and whether the prevailing party is entitled to judgment as a matter of law. Chuuk v. Secretary of Finance, 9 FSM Intrm. 424, 430 (App. 2000).

The standard to be applied in reviewing a criminal conviction against an insufficiency of the evidence challenge is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. The appellate court must review the evidence in the light most favorable to the trial court's factual determination. A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard, while the appellate court may disagree with and overrule the trial court's conclusions of law. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000).

When sufficient evidence was before the trial court such that it could reasonably have been persuaded beyond a reasonable doubt that the defendant did not attempt to turn in the shotgun to an appropriate official because the trial court could reasonably have concluded that the defendant's actions at the security screening area were consistent with the way any passenger might have dealt with any piece of carry on luggage, and that it did not constitute turning in the shotgun to an "appropriate official" under 11 F.S.M.C. 1223(6), its findings were not clearly erroneous and will not be disturbed. Sander v. FSM, 9 FSM Intrm. 442, 449 (App. 2000).

The standard of review on a question of the sufficiency of the evidence is whether the trial court's findings are clearly erroneous. Only findings that are clearly erroneous can be set aside on appeal. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 462 (App. 2000).

A trial court's factual findings adequately supported by substantial evidence in the record cannot be set aside on appeal. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 462 (App. 2000).

The question whether the facts as found (or whether the facts as found which are not clearly erroneous) are sufficient evidence to meet the plaintiff's burden of proof is a question of law distinct from issues relating to the weight of the evidence, and as such a proper issue on appeal. Questions of law are reviewed de novo. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 462 (App. 2000).

A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 462 (App. 2000).

If an appellant alleging clear error fails to show that the trial court's factual finding was not supported by substantial evidence in the record, or if the factual finding was the result of an erroneous conception of the applicable law, or that, if after a consideration of the entire record, the appellate court is not left with a definite and firm conviction that a mistake has been made, the appellate court can only affirm. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 463 (App. 2000).

When the trial judge believed one witness's testimony and not another's, and gave an extensive analysis of the testimony before him that led him to that conclusion, there is no reason for the appellate court to disturb his conclusion, since it was supported by credible evidence and he had the opportunity to observe the witnesses and the manner of their testimony, and the appellate court did not have that opportunity. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 463 (App. 2000).

There are not reasons to find clearly erroneous the trial court's finding that the defendant continued to utilize her IDD service after she requested termination when the trial court had before it evidence that the calls reflected the same pattern as existed throughout the billing period. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 464 (App. 2000).

An appellate court cannot say that the trial court's finding was clearly erroneous when it was the result of weighing conflicting evidence. Worswick v. FSM Telecomm. Corp., 9 FSM Intrm. 460, 464 (App. 2000).

When the question presented is one of law, it is reviewed on a de novo basis. Department of Treasury v. FSM Telecomm. Corp., 9 FSM Intrm. 575, 579 (App. 2000).

The standard of review of a court's imposition of sanctions under its inherent powers is for abuse of discretion. This accords with the abuse of discretion standards for review of Rule 11 attorney sanctions and for review of discovery sanctions. In re Sanction of Woodruff, 10 FSM Intrm. 79, 86 (App. 2001).

Stay

A stay is normally granted only where the court is persuaded as to the probability of ultimate success of the movant. In re Raitoun, 1 FSM Intrm. 562, 563 (App. 1984).

In determining whether to grant a stay, a single appellate judge, acting alone, must consider whether it is more likely than not that the petitioner would be able to persuade a full appellate panel as to the soundness of his legal position and that there are such special circumstances that the trial court should be mandated to modify its conduct of the trial. In re Raitoun, 1 FSM Intrm. 561, 563 (App. 1984).

A motion to the state appellate division to stay state trial court proceedings pending appellate court issuance of a promised detailed written opinion explaining appellate denial of an earlier petition for writ of mandamus against the trial judge is denied where: 1) there was no presently scheduled proceeding to take place at the trial level although the trial judge had instructed the parties to be prepared to proceed if the writ was denied; 2) an appellate opinion is to be written informing the parties of the reasons for dismissal of the petition for writ of mandamus; 3) the constitutional issues of first impression were resolved in the denial of the writ; 4) a matter that has been ruled upon and completed such that no other action is required except for the issuance of an opinion will not support a motion to stay on the appellate level; and 5) no motion to stay had been requested of the trial court. Etscheit v. Adams, 4 FSM Intrm. 242, 244 (Pon. S. Ct. App. 1990).

In weighing the possibility of success of an application for a writ of mandamus on grounds that one public defender's conflict should be imputed to all lawyers in the Public Defender's office, when the original disqualification is based upon a conflict of the attorney's loyalties because of his familial relationship with the victim, but no issue of confidentiality is raised, and only the issue of loyalty is present, but no showing is made that the other lawyers could not give full loyalty to the client; there exists no substantial possibility of an appellate court granting the writ and a stay of proceedings pending consideration of the application should not be granted. Office of the Public Defender v. Trial Division, 4 FSM Intrm. 252, 254 (App. 1990).

Under FSM Appellate Rule 27(c) a motion for a stay of proceedings pending consideration of a motion for a writ of mandamus to require a trial court to appoint a lawyer other than the Public Defender is denied where there: 1) is no substantial possibility that a full panel would grant the writ, 2) is no showing of irreparable harm if the stay is denied, and 3) are no equities presented in favor a stay. Office of the Public Defender v. Trial Division, 4 FSM Intrm. 252, 255 (App. 1990).

When an appellant has applied to the appellate division for a stay it normally will be considered by all justices of the appellate division, but in exceptional cases application may be made to and considered by a single justice. The power of the appellate division or a single justice thereof to stay proceedings during the pendency of an appeal is not limited by the Rules of Civil Procedure. Pohnpei v. Ponape Constr. Co., 6 FSM Intrm. 221, 222 (App. 1993).

The purpose of requiring a supersedeas bond for a stay is to protect the interests of the appellees. A bond protects the appellees by providing a fund out of which it may be paid if the money judgment is affirmed, and it meets the concerns of the appellee that the appellant might flee the jurisdiction or conceal or dissipate assets so as to render itself judgment-proof. The latter concerns are not present when the appellant is a state. Pohnpei v. Ponape Constr. Co., 6 FSM Intrm. 221, 223 (App. 1993).

A court may modify an injunction to preserve the status quo during the pendency of an appeal. Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 276-77 (Pon. 1993).

While a supersedeas bond is a prerequisite to granting a stay from a money judgment, no such bond is required in order to obtain a modification of an injunction pending appeal. It may be granted upon such terms as to bond or otherwise as the court considers for the security of the adverse party's rights. Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 277 (Pon. 1993).

The criteria for granting a stay pending appeal under Rule 62 are: 1) whether the appellant has shown that without the stay he will be irreparably harmed; 2) whether issuance of the stay would substantially harm other parties interested in the proceedings; 3) whether the public interest would be served by granting a stay; and 4) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal. Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 277-78 (Pon. 1993).

When summary judgment is granted enjoining trespassing farmers, removing the farmers from the land while their appeal is pending might more substantially alter the status quo than a stay allowing them to remain on the land. Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 276, 278 (Pon. 1993).

A stay on appeal may be granted even when the moving party has less than a 50% chance of success if the question is a difficult one, or an issue of first impression about which respectable minds might differ. Ponape Enterprises Co. v. Luzama, 6 FSM Intrm. 274, 279 (Pon. 1993).

An appellant may apply to the trial division for a stay of judgment. If the stay is denied by the trial division he may apply to the appellate division. If the stay is granted and its terms seem onerous, the petitioner may apply to the appellate division for a modification of the stay, and may also request an expedited briefing schedule. Senda v. Trial Division, 6 FSM Intrm. 336, 338 (App. 1994).

The FSM Code provision authorizing the general powers of the Supreme Court gives the court the authority to grant a stay of proceedings in one case pending the outcome of another case which addresses the same or similar issues. Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 411, 414 (Pon. 1994).

Factors for a court to consider in determining it whether should exercise its discretion to grant a stay of proceedings in one case pending the outcome of another case which addresses the same or similar issues include whether judicial economy will be furthered by a stay because the cases on appeal may have claim or issue preclusive effect on the case to be stayed; the balance of the competing interests; the orderly administration of justice and whether the case is one of great public importance. Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 411, 414 (Pon. 1994).

A stay should be granted in one case pending the outcome of another case on appeal which addresses the same or similar issues, when it is in the interests of avoiding the waste of judicial resources, managing the court's calendar, sparing the parties unnecessary litigation efforts, and avoiding inconsistent or confusing outcomes, especially if granting the stay will not adversely affect the parties opposing the stay to any substantial extent because they are also parties to the other case on appeal. Ponape Enterprises Co. v. Bergen, 6 FSM Intrm. 411, 415-16 (Pon. 1994).

Because speedy and final resolution of questions regarding the constitutional roles of the state and national governments will avoid unnecessary conflict and possible jurisdictional tension between the state and national courts, it is proper to stay an order of abstention pending appeal in such cases. Pohnpei v. MV Hai Hsiang #36 (II), 6 FSM Intrm. 604, 605 (Pon. 1994).

The rule requiring a supersedeas bond to be posted before a stay may granted pending appeal is applicable only to appeals from money judgments. Pohnpei v. MV Hai Hsiang #36 (II), 6 FSM Intrm. 604, 605 (Pon. 1994).

A stay of judgment by a trial court is an action in aid of the appeal. Walter v. Meippen, 7 FSM Intrm. 515, 519 (Chk. 1996).

A stay of a money judgment pending appeal is effective when the appellant's supersedeas bond is approved by the court. Walter v. Meippen, 7 FSM Intrm. 515, 519 (Chk. 1996).

A stay of judgment may be granted while a motion for relief from judgment is pending. Walter v. Meippen, 7 FSM Intrm. 515, 519 (Chk. 1996).

In exceptional cases when consideration by the appellate panel would be impracticable due to time requirements, an application for a stay may be made to and considered by a single Chuuk State Supreme Court justice. In re Contempt of Umwech, 8 FSM Intrm. 20, 21 (Chk. S. Ct. App. 1997).

Punishment of imprisonment for contempt is automatically stayed on appeal, unless the court finds that a stay of imprisonment will cause an immediate obstruction of justice. "Obstruction of justice" means to impede those who seek justice in court or to impede those who have duties or powers to administer justice. In re Contempt of Umwech, 8 FSM Intrm. 20, 22 (Chk. S. Ct. App. 1997).

When all parties are seeking to vindicate their positions in a court of law an immediate obstruction of justice is not present that would prevent the automatic stay of punishment of imprisonment for contempt. In re Contempt of Umwech, 8 FSM Intrm. 20, 22 (Chk. S. Ct. App. 1997).

A single justice may consider a motion for a stay when time requirements and geographical dispersion make it impractical for it to be considered by the full appellate panel. In re Recall Election, 8 FSM Intrm. 71, 73-74 (App. 1997).

A motion for a stay will be denied when it does not show that application to the court appealed from is impractical or that the court appealed from has denied the relief requested accompanied by that court's reasons for the denial. In re Recall Election, 8 FSM Intrm. 71, 74 (App. 1997).

The FSM Supreme Court appellate division has no authority to review an application for release from jail pending appeal until the court appealed from has refused release or imposed conditions. Nimwes v. FSM, 8 FSM Intrm. 297, 298-99 (App. 1998).

When a person convicted of a crime appeals only his jail sentence and seeks a stay of that sentence pending appeal, the trial court will grant a stay only if it is reasonably assured that the appellant will not flee or pose a danger to any other person or to the community, and that the appeal is not for purpose of delay, and raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment. The burden of establishing these criteria rests with the defendant. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998).

The request of a defendant, who is appealing only his jail sentence, for a stay pending appeal will be denied because his allegation that his four-month jail sentence for misappropriating to his own use $17,125 of government money is cruel and unusual punishment and an abuse of the judge's discretion when he has diabetes does not raise a substantial question likely to result in a sentence without a jail term and raises the inference that the appeal was brought for the purpose of delay. FSM v. Nimwes, 8 FSM Intrm. 299, 300 (Chk. 1998).

A sentence of imprisonment will be stayed if an appeal is taken to the Chuuk State Supreme Court appellate division and the defendant is released pending disposition of appeal if application for release is made in the first instance in the court appealed from. Iwenong v. Chuuk, 8 FSM Intrm. 550, 551-52 (Chk. S. Ct. App. 1998).

Motions to stay proceedings during an appeal are governed by Rule 62, CSSC Rules of Civil Procedure, which is near identical to the corresponding rule of the FSM Supreme Court and the Federal rules of the United States. The criteria for granting a motion to stay pending appeal are the same as for equity jurisdiction for the granting of an injunction. Pius v. Chuuk State Election Comm'n, 8 FSM Intrm. 570, 571 (Chk. S. Ct. App. 1998).

No stay in an election appeal will be granted when nothing in the record of the case indicates that appellant will suffer irreparable harm and, also, that he will likely prevail on the merits of the appeal and when granting a stay would have a substantial effect on the municipal employees and other public officials who have held office for almost a year and would not be in the public interest of having an efficient and effective municipal government. Pius v. Chuuk State Election Comm'n, 8 FSM Intrm. 570, 571 (Chk. S. Ct. App. 1998).

When it appears that there is no provision in the Chuuk Constitution or statutes which guarantees the right to or even permits voting by absentee ballot, the appellants have not shown a likelihood of success on appeal and their request for a stay of a trial court judgment not to deliver Losap municipal absentee ballots to voters outside of Chuuk will be denied. Chipen v. Election Comm'r of Losap, 9 FSM Intrm. 80, 81 (Chk. S. Ct. App. 1999).

An order directing the Kosrae Land Commission, a non-party, to complete the division of disputed land is not injunctive in nature, and is not a controlling question of law. Therefore the order is not appealable, and it should not be stayed pending any putative appeal. Youngstrom v. Phillip, 9 FSM Intrm. 103, 105 (Kos. S. Ct. Tr. 1999).

A final judgment that precisely defines a disputed boundary cannot be entered until the Land Commission completes the survey partitioning the land. Once the boundary is determined, the defendant may then meaningfully assess his situation for purposes of considering any appeal. Therefore a motion to stay the survey's completion pending appeal will be denied. Youngstrom v. Phillip, 9 FSM Intrm. 103, 106 (Kos. S. Ct. Tr. 1999).

When a stay application to the court appealed from is not practicable because the trial justice is unavailable and ill and out of the country for an extended time an appellant may apply for a stay in the appellate division. Department of Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 353, 354-55 (App. 2000).

One reason to grant a stay on appeal is if the court is persuaded that the appellant will prevail on the merits of the appeal. Department of Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000).

Generally, there are four factors to weigh before granting a stay pending appeal: 1) whether the appellant has made a strong showing that he is likely to prevail on the merits of the appeal; 2) whether the appellant has shown that without the stay he will be irreparably harmed; 3) whether issuance of the stay would substantially harm other parties interested in the proceedings; and 4) whether the public interest would be served by granting a stay. Ordinarily, the first factor is the most important, but a stay may be granted upon a lesser showing of a substantial case on the merits when the balance of the equities identified in factors 2, 3, and 4 weighs heavily in favor of granting the stay. Department of Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 353, 355 (App. 2000).

A stay will be denied when the appellant has not made a strong showing that it is likely to prevail on the merits of its claim that a use tax is permitted under the FSM Constitution and has not shown that its injury is irreparable, even though there might be no harm to the only other party to the appeal, and the public interest favors neither granting nor denying a stay. Department of Treasury v. FSM Telcomm. Corp., 9 FSM Intrm. 353, 355-56 (App. 2000).
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