FSM SUPREME COURT APPELLATE DIVISION
Cite as Bualuay v. Rano
11 FSM Intrm. 139 ( App. 2002)
 
[11 FSM Intrm. 139]
 
KOTARO BUALUAY,
Appellant,
 
vs.
 
ARUCHIRO RANO and NUII RANO,
Appellees.
 
APPEAL CASE NO. C1-1999
 
OPINION
 
Argued: January 28, 2002
 
Decided: September 13, 2002
 
BEFORE:
 
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*
 
*Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
 
APPEARANCES:
 
For the Appellant:                        Wesley Simina, Esq.
                                                      P.O. Box 94
                                                      Weno, Chuuk FM 96942
 
For the Appellees:                      Stephen V. Finnen, Esq.
                                                      Law Offices of Saimon & Associates
                                                      P.O. Box 1450
                                                      Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review; Jurisdiction
     The presence or lack of subject matter jurisdiction can be raised at any time by any party or by the court. Once raised, it must be considered. This is because a decision by a court without subject matter jurisdiction is void, and such occurrences should be avoided. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
Jurisdiction
      Subject matter jurisdiction cannot be waived, and must be considered no matter how late in the proceeding it is raised. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
[11 FSM Intrm. 140]
 
Appellate Review ) Decisions Reviewable
     An appellate court has jurisdiction over an appeal only if it is timely filed. The time limit set by Rule 4(a)(1) is jurisdictional, and if that time is not extended by a timely motion to extend that time period under Rule 4(a)(5), the appellate division is deprived of jurisdiction to hear the case. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
Appellate Review ) Dismissal
     Because the requirement that an appeal be timely filed is mandatory and jurisdictional, an untimely filed appeal must be dismissed. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
Appellate Review ) Notice of Appeal
     The 42-day appeal period applies to all appellate review of final decisions of the Chuuk State Supreme Court appellate division. A certiorari petition is treated as a notice of appeal since it seeks appellate review of a Chuuk State Supreme Court appellate division final decision. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
Appellate Review ) Notice of Appeal
     Upon a motion filed not later than 30 days after the expiration of the time prescribed by Appellate Rule 4(a) and with notice to the other parties, Rule 4(a)(5) allows the court appealed from to extend the time for filing a notice of appeal for excusable neglect or good cause. Bualuay v. Rano, 11 FSM Intrm. 139, 145 (App. 2002).
 
Appellate Review ) Notice of Appeal
     Although Rule 4(a)(5) has no absolute deadline within which the court appealed from must rule on a motion to extend time to file a notice of appeal, it does expect a fairly prompt ruling and encourages one within the thirty-day period. Therefore when there has been no ruling on a motion to extend for almost three years, it is best to treat the lack of a ruling as a denial. Bualuay v. Rano, 11 FSM Intrm. 139, 146 (App. 2002).
 
Appellate Review ) Notice of Appeal
     The FSM Supreme Court appellate division has no authority to waive or extend Rule 4(a)s time requirements or to grant a motion to extend time to appeal. Bualuay v. Rano, 11 FSM Intrm. 139, 146 (App. 2002).
 
Appellate Review ) Notice of Appeal; Appellate Review ) Standard of Review
     A lower courts grant or denial of an extension of time to file a notice of appeal is an appealable order reviewed under the abuse of discretion standard. Bualuay v. Rano, 11 FSM Intrm. 139, 146 (App. 2002).
 
Appellate Review
     When an appellate rule has not been construed by the FSM Supreme Court and it is nearly identical to a United States counterpart, the FSM Supreme Court may look to U.S. practice for guidance. Bualuay v. Rano, 11 FSM Intrm. 139, 146 n.1 (App. 2002).
 
Appellate Review ) Notice of Appeal
     The court appealed from may extend the time to seek appellate review of a final decision upon a showing of excusable neglect or good cause. Failure to learn of the entry of judgment is a major, but not the only, reason for finding excusable neglect. Bualuay v. Rano, 11 FSM Intrm. 139, 146 (App. 2002).
 
[11 FSM Intrm. 141]
 
Appellate Review ) Notice of Appeal
     Merely being a busy lawyer does not constitute excusable neglect justifying an enlargement of time to file a notice of appeal, but when other factors are also present, the neglect may be excusable. Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002).
 
Appellate Review ) Notice of Appeal
     The alternative ground for a motion to extend time to appeal, "good cause" is a broader and more liberal standard than "excusable neglect," and under a plain reading of the rule, the good cause standard applies both to motions to extend filed after the initial appeal period has passed as well as those filed before. Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002).
 
Appellate Review ) Notice of Appeal
     Under the unique combination of the state courts lack of a working copy machine, which delayed the entry of that courts opinion becoming known to the parties; the appellants protracted unavailability for consultation with his counsel coupled with the short time left to appeal once he became available; the contemporaneous press of urgent cases; the appellants counsels diligent and good faith efforts; and the lack of prejudice to the opposing parties; both excusable neglect and good cause existed to extend time to appeal, and that it would have been an abuse of discretion to deny the motion requesting it. Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002).
 
Appellate Review ) Standard of Review
      A court may abuse its discretion by an unexplained, lengthy delay or by failure to exercise its discretion within a reasonable time. Bualuay v. Rano, 11 FSM Intrm. 139, 147 (App. 2002).
 
Appellate Review ) Notice of Appeal
     The grant of a motion to extend time to appeal retroactively validates a previously-filed notice of appeal. Similarly, an appellate reversal of a lower courts denial of a motion to extend, retroactively validates a notice of appeal filed within the thirty-day extension period. Bualuay v. Rano, 11 FSM Intrm. 139, 148 (App. 2002).
 
Courts ) Judges; Settlement
     Trial judges are expected to suggest the desirability of possible settlement. That is a normal part of their job. Bualuay v. Rano, 11 FSM Intrm. 139, 148 (App. 2002).
 
Civil Procedure ) Summary Judgment; Courts ) Recusal
     There is no need to remand a matter for a new trial judge to consider the summary judgment motions when the knowledge that the defendants lived on part of the land was in the record and did not stem from an extrajudicial source; when there was no extrajudicial conduct because the trial judge received information from the former special master when both counsel were present; when trial counsel as well as the judge engaged in appeals to divine aid at the motion hearing; and when the judge encouraged settlement. Bualuay v. Rano, 11 FSM Intrm. 139, 148-49 (App. 2002).
 
Civil Procedure ) Summary Judgment
      If a genuine issue of material fact is present then the trial court has to deny the summary judgment motion. Bualuay v. Rano, 11 FSM Intrm. 139, 149 (App. 2002).
 
Appellate Review ) Standard of Review; Civil Procedure ) Summary Judgment
      An appellate court uses the same standard in reviewing the grant or denial of a summary judgment that the trial court initially did. Therefore, if the appellate court concludes that a genuine issue of material fact was present, then it must rule that the summary judgment should have been denied; and if it concludes that a genuine issue is not present, then, viewing the facts in the light most

[11 FSM Intrm. 142]

favorable to the nonmovant, it rules de novo on whether the movant was entitled to judgment as a matter of law. This is true even when the appeal comes from another appellate court. Bualuay v. Rano, 11 FSM Intrm. 139, 149 (App. 2002).
 
Civil Procedure ) Res Judicata; Civil Procedure ) Summary Judgment
     When an earlier Trust Territory High Court judgment clearly stated that someone owned only half of a land parcel and the plaintiffs only claim to the land is through his purchase of that persons rights, he cannot own any more of the land than the half that the seller owned, and when that judgment was res judicata and binding on the parties to that case and all claiming under them, there was no genuine issue of fact as to whether the plaintiff owned half or all of the land. He owned only half, and the defendants were therefore entitled, as a matter of law, to a summary judgment to that effect. Bualuay v. Rano, 11 FSM Intrm. 139, 150 (App. 2002).
 
Appellate Review ) Standard of Review; Civil Procedure ) Summary Judgment
      An appellate court may affirm the trial courts summary judgment on a different theory when the record contains adequate and independent support for that basis. Bualuay v. Rano, 11 FSM Intrm. 139, 150 n.3 (App. 2002).
 
Appellate Review ) Standard of Review; Civil Procedure ) Summary Judgment
      When a genuine issue of material fact exists about where the boundary between the two halves of a piece of land lies, summary judgment on this issue is not possible, and the trial courts summary judgment concerning the boundary will be vacated, and that issue remanded to the trial court. Bualuay v. Rano, 11 FSM Intrm. 139, 151 (App. 2002).
 
Civil Procedure ) Summary Judgment
      When a summary judgment was properly made in the defendants favor, the plaintiff, as a matter of law, cannot be entitled to a contrary summary judgment. Bualuay v. Rano, 11 FSM Intrm. 139, 151 (App. 2002).

* * * *

COURTS OPINION

ANDON L. AMARAICH, Chief Justice:

      This appeal comes before us from a Chuuk State Supreme Court appellate division opinion affirming a Chuuk State Supreme Court trial division summary judgment. We affirm the trial court judgment in part and vacate it in part.

I. Background

      This matter originally arose in Trust Territory High Court Civil Action No. 407. In that case, Judge Robert Clifton issued a judgment confirming that the defendant Nessa owned certain lands including "one-half of the taro patch or swamp known as 'Mochikis located on Moen Island." Enisa v. Nessa, Civ. No. 407, Judgment Order at 3 (Mar. 26, 1968). This was based on a report issued by Fritz Soukichi, then Chief Judge of the Trust Territory District Court (for Truk), sitting as a special master. The judge further held that

as to the taro patch or swamp known as Mochikis, the defendant Messas [sic] half of said taro swamp are as delineated and marked on the diagram marked "Courts sketch" showing the taro swamp Mochikis, that is, the defendant Nessas half of the taro swamp

[11 FSM Intrm. 143]

are that portion designated as "claimed by the defendant". Said diagrams or sketches are on file in this action and are a part of the Masters report.

Id. at 3-4. The judgment concluded that "the plaintiff Enisa and all persons claiming under her . . . have no right, title or interest in and to the above-described lands and that the plaintiff shall take nothing from this action." Id. at 4. The judgment was not appealed.

     Kotaro Bualuay bought Nessas interest in Mochikis. On September 12, 1995, he filed his Complaint for Quiet Title Permanent Injunction and Injunctive Relief. Bualuay asserted that, based on Civil Action No. 407, he was the owner of all of Mochikis and claimed that the defendants, Aruchiro Rano and Nuii Rano (Enisas children and her successors in interest), were trespassing on Mochikis by filing in the taro patch and building houses. He sought a judgment that he had title to Mochikis, an injunction restraining the Ranos from continuing their presence or activity on Mochikis, and $30,000 damages.

      The Ranos Answer and Counterclaim denied entering the whole of Mochikis, but admitted filling in the southern half of the Mochikis taro swamp and building two dwelling houses and a cookhouse there in 1989 and 1990. The answer averred that in 1972 High Court Chief Justice Burnett issued an order in Civil Action No. 407 clarifying that Nessa was the owner of the northern half of Mochikis as shown in the sketch that was part of the Masters Report. It also averred that in 1975 in response to a request for a boundary survey, High Court Judge William restated Chief Justice Burnetts order and stated that the order and sketch were self-explanatory. The Ranos raised as affirmative defenses the res judicata effect of Civil Action No. 407, stale demand (statute of limitations), and laches. They asked that Bualuays requested relief be denied and that they be awarded "title to their southern half of the taro swamp Mochikis."

      On February 12, 1996, the Ranos moved for summary judgment on the ground that the facts had already been decided by the 1968 Trust Territory High Court judgment in Civil Action No. 407 and reaffirmed by that court (Burnett, C.J.) on November 15, 1972. The Ranos asserted that there was thus no genuine issue of material fact except maybe to try to mediate the boundary line between the parties. On March 13, 1996, Bualuay opposed the summary judgment motion and moved for judgment on the pleadings. Bualuay claimed that there was still a genuine issue of fact. He asserted that Civil Action No. 407 stated that Enisa (the Ranos predecessor in interest) had no right, title, or interest in Mochikis; that the special master stated that Enisa had no discernable interest in Mochikis; that Nessa (Bualuays predecessor in interest) never claimed half of Mochikis, she claimed all of Mochikis; and that if Enisa had proved she owned the half awarded to Nessa then the other half would be unclaimed.

     On March 28, 1996, the trial judge held a hearing on the motions. There was also a conference with Chief Justice Soukichi Fritz, with both counsel present, where Fritz reiterated that his decision as special master was: half for Enisa; half for Nessa. On May 3, 1996, the trial court issued its opinion. It decided that, in keeping with the High Court judgment, Bualuay and the Ranos were each entitled to half of Mochikis. The trial judge then referred to the court sketch showing Mochikiss roadside length to be 198 yards 2 feet and 8 inches long and ordered Mochikis divided between the parties at a point in the middle, 99 yards, 1 foot, and 4 inches from each end, with the boundary running from the road out to the mangroves. The trial court said that put the plaintiff where he (already) is and the defendants where they (already) are. Bualuay timely appealed to the Chuuk State Supreme Court appellate division.

      The Chuuk appellate opinion, entered February 1, 1999, stated that "[i]n substance, the judgment of the trial court reaffirmed the decision in a previous case before the High Court of the Trust Territory in the matter." Bualuay v. Rano, 9 FSM Intrm. 39, 40 (Chk. S. Ct. App. 1999). It held that the trial court judgment was "based solely on a previous decision of the High Court in Civil Action No.

[11 FSM Intrm. 144]

407, dated March 26, 1968." Id. The appellate division concluded that it found "nothing in the record on appeal in this case or in the trial court that contradicts the findings of the Master or the Judgment of the High Court previously rendered on these issues of ownership of the land in question." Id.

      Bualuay then sought further appellate review, and on March 19, 1999, filed a petition for writ of certiorari in the FSM Supreme Court appellate division. The petition was granted. Bualuay v. Rano, 9 FSM Intrm. 548 (App. 2000). The case is now before us.

II. Jurisdictional Issue

     At oral argument, Ranos counsel raised as a threshold question whether we had jurisdiction. Counsel apologized for not raising it sooner. He stated that he had just noticed that the petition for certiorari had been filed in the FSM Supreme Court later than the 42 days Appellate Rule 4(a)(1) allows for the filing of a notice of appeal after a final judgment or order. In response, Bualuays counsel averred that he had filed in the Chuuk State Supreme Court appellate division a motion to extend time to file Bualuays notice of appeal; that the motion had been served on the Ranos then counsel, who did not file any opposition; and that the filings should be in the record received from the Chuuk State Supreme Court. Counsel also noted that he had not received a ruling on the motion, but questioned whether the 42-day appeal period applied to certiorari petitions.

A. Bualuays Motion to Extend Time to Appeal

     On February 7, 2002, Bualuays counsel filed Supplemental Authorities on this issue. Included were copies of his Motion to Extend Time to File Notice of Appeal or Petition for a Writ of Certiorari (with attached Points and Authorities and an Affidavit of Counsel sworn to before the Chuuk State Supreme Court clerk on March 18, 1999) and a Certificate of Service, both file-stamped on March 18, 1999 in the state court. Counsels reason for providing this supplement was that under FSM Appellate Rule 10(a), since the papers were filed in the Chuuk State Supreme Court appellate division, they should have been part of the record on appeal and should have been transmitted to this court with the record, but were not. Counsel also noted that, for reasons unknown, copies were not transmitted to this court as a part of the record; copies could not be found in any of the files at the Chuuk State Supreme Court; and the motion appeared not to have been ruled upon. Counsel also noted that the Bualuay appellate panels presiding justice, to whom the motion was addressed, was resident on Pohnpei.

     The motion to extend time was filed on March 18, 1999, one day before the certiorari petition was filed in this court. The motion and supporting papers recited that the Chuuk State Supreme Court appellate opinion had been entered on February 1, 1999; that the state court did not have a working copy machine at the time; and that no copies had been made or served by February 10, 1999, when counsels phone call discovered the situation. Shortly thereafter, he obtained a copy of the opinion. Other than informing Bualuay of the results, counsel was unable to consult with him due to Bualuays involvement in the March 2, 1999 election campaign, which included travel to the Mortlocks. Almost a week after the election, counsel was finally able to consult with him and was informed he wished to appeal. Counsel then prepared a notice of appeal in accordance with FSM Appellate Rule 4(a)(1)(A), but then redid the paperwork to comply with the certiorari provision of the Chuuk Judiciary Act. At the same time counsel was busy with urgent election cases.

     Because the Chuuk State Supreme Court appellate opinion was entered on February 1, 1999, the last day of the 42-day appeal period in Rule 4(a)(1) was March 15, 1999. Although counsel stated his doubts that the 42-day appeal period applied to certiorari, counsel properly tried to preserve his clients rights and filed a motion on March 18, 1999 in the Chuuk State Supreme Court appellate division to extend the time to appeal. A copy was served on opposing counsel, who later told

[11 FSM Intrm. 145]

Bualuays counsel that he had no objection to the motion to extend. The motion was addressed to the panels presiding justice, and it appears that neither he nor the full panel ever ruled on the motion. It is unknown whether a copy of the motion ever came to the presiding justices or the panels attention.

B. Discussion

      The presence or lack of subject matter jurisdiction can be raised at any time by any party or by the court. Hartman v. FSM, 6 FSM Intrm. 293, 296 (App. 1993). Once raised, it must be considered. This is because a decision by a court without subject matter jurisdiction is void, and such occurrences should be avoided. Subject matter jurisdiction cannot be waived, and must be considered no matter how late in the proceeding it is raised. See. e.g., Lamar v. United States, 241 U.S. 103, 117-18, 36 S. Ct. 536, 540, 60 L. Ed. 912, 918 (1916) (challenge to trial courts jurisdiction heard and decided on its merits even though first raised in supplemental brief filed after appellants second request for U.S. Supreme Court review).

      It was therefore entirely proper for Ranos counsel to raise the issue as soon as he noticed it, even though it was orally and at the start of oral argument on the merits. We therefore must turn to the jurisdictional issue first.

      An appellate court has jurisdiction over an appeal only if it is timely filed. "The time limit set by Rule 4(a)(1) is jurisdictional, and if that time is not extended by a timely motion to extend that time period under Rule 4(a)(5), the appellate division is deprived of jurisdiction to hear the case." Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001). Because the requirement that an appeal be timely filed is mandatory and jurisdictional, see, e.g., Browder v. Director, Dept of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 561, 54 L. Ed. 2d 521, 531 (1978), an untimely filed appeal must be dismissed. FSM App. R. 3(a).

      FSM Appellate Rule 4(a)(1)(A) provides in pertinent part that "[i]n civil cases, by the filing of a notice of appeal . . . within forty two (42) days after the date of the entry of the judgment or order appealed from, appeals may be taken: (A) from all final decisions of the . . . Chuuk State [Supreme] Court appellate division." The 42-day appeal period thus applies to all appellate review of final decisions of the Chuuk State Supreme Court appellate division. The certiorari petition, for the purposes of this rule, is treated as a notice of appeal since it seeks appellate review of a Chuuk State Supreme Court appellate division final decision. The 42-day period for this appeal thus expired on March 15, 1999. The certiorari petition was filed on March 19, 1999.

      But FSM Appellate Rule 4(a)(5) allows the time to appeal to be extended under certain conditions. It 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 prescribed by Rule 4(a). . . . Notice of any such motion which is filed after the expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

FSM App. R. 4(a)(5). Bualuays March 18, 1999 motion to extend was timely filed within the thirty days after the prescribed time, and he gave notice of the motion to opposing counsel. It thus complied with the Rule 4(a)(5) procedural requirements.

[11 FSM Intrm. 146]

      The motion to extend was never ruled upon. The text of Rule 4(a)(5) encourages a ruling on the motion before the thirty day period ends and contemplates a reasonably prompt ruling by the court appealed from, although the ten day extension provision acknowledges that the court appealed from may not be able to rule on the motion before the thirty day period has ended. At this late hour, too much time has elapsed to expect a ruling on the motion, especially since the filed papers seem to have gone astray.

      We could treat the failure to rule on the motion as the equivalent of the court granting the motion. Or we could treat it as the court denying it. But, if we were to treat a motion as automatically granted once a long time has elapsed without a ruling, it would set a dangerous precedent. In the past, we have held that an administrative agencys failure to rule within a statutorily-required time frame should be treated as a denial triggering the right to appeal to this court. Wiliander v. Mallarme, 7 FSM Intrm. 152, 158 (App. 1995) ("The National Election Directors failure to render his decision within the statutorily-prescribed time limit must be considered a denial of the petition."). Although Rule 4(a)(5) has no absolute deadline within which the court appealed from must rule on the motion to extend, it does expect a fairly prompt ruling and encourages one within the thirty-day period. Under the circumstances, we consider it best to treat the lack of a ruling on the motion to extend as a denial.

      The FSM Supreme Court appellate division has no authority to waive or extend Rule 4(a)s time requirements or to grant a motion to extend time to appeal. FSM App. R. 26(b); see also OSonis v. Bank of Guam, 9 FSM Intrm. 356, 360 n.2 (App. 2000); Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986). Nor has Bualuay asked this court to grant such an extension or filed anything with this court that could be considered as a motion to extend.

      But a lower courts "grant or denial of an extension of time for appeal is an appealable order reviewed under the abuse of discretion standard." National Indus., Inc. v. Republic Natl Life Ins. Co., 677 F.2d 1258, 1264 (9th Cir. 1982); see also Diamond v. United States Dist. Court, 661 F.2d 1198, 1198 (9th Cir. 1981);1 In re Orbitec Corp., 520 F.2d 358, 360 (2d Cir. 1975). We shall therefore review the lower courts "denial" of Bualuays motion to extend under this standard.

      The court appealed from may extend the time to seek appellate review of a final decision "upon a showing of excusable neglect or good cause." FSM App. R. 4(a)(5). Excusable neglect justifying an extension of time to appeal has been found in a variety of circumstances. In Active Glass Corp. v. Architectural & Ornamental Iron Workers Local 580, 899 F. Supp. 1228 (S.D.N.Y. 1995) the court found excusable neglect and extended the time to appeal when counsel had received a court order compelling arbitration and promptly informed his client of the order but before they could meet to discuss it counsel was hospitalized and unable to communicate with his client; when the court clerk erroneously misinformed counsels secretary that the order was not final and appealable; and when the initial appeal period had expired before counsel learned the case was closed, but he promptly moved for a time extension. There are similarities between Active Glass and this appeal. Both cases involve counsel being misled by actions of court personnel (in our case, counsel was lulled into the belief that no opinion had been entered because of the courts inability to make copies to serve counsel), and both involve counsels inability to consult with his client. "Failure to learn of the entry of judgment is the major, but not the only, reason for finding excusable neglect." Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979). See also Marshall v. Hope Garcia Lancarte, Inc., 632 F.2d 196, 1197 (5th Cir. Unit A 1980) (filing timely notice of appeal with incorrect docket number was excusable neglect;

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trial court denial reversed).

      Counsel presented a number of facts as grounds to grant the motion, including that he was busy with some urgent election cases. However, merely being a busy lawyer does not constitute excusable neglect justifying an enlargement of time. Medabalmi v. Island Import Co., 10 FSM Intrm. 217, 219 (Chk. 2001). But when other factors are also present, the neglect may be excusable. Furthermore, the alternative ground, "good cause" is a broader and more liberal standard than "excusable neglect." FSM Dev. Bank v. Gouland, 9 FSM Intrm. 375, 378 (Chk. 2000). And under a plain reading of the rule, the good cause standard applies both to motions to extend filed after the initial appeal period has passed as well as those filed before. Scarpa v. Murphy, 782 F.2d 300, 301 (1st Cir. 1986) (notice of appeal mailed to court in same city five days before deadline but took seven days to arrive found to be good cause to grant extension; trial court denial reversed); Enos v. Pacific Transfer & Warehouse, Inc., 910 P.2d 116, 121-22 (Haw. 1996) (neither excusable neglect nor good cause found when counsel failed to read and comply with clear applicable rule); Northwest Truck & Trailer Sales, Inc. v. Dvorak, 877 P.2d 31, 33 (Mont. 1994) (both good cause and excusable neglect found when for a combination of reasons counsel miscalendared the time for appeal and clients required him to wait to appeal until they had made arrangements for payment of costs); Murphy v. Crosland, 915 P.2d 491, 495 (Utah 1996) (good cause existed to extend time to file new notice of appeal when appellant filed timely notice of appeal later made ineffective because opponent filed timely new trial motion).

      Bualuays grounds include much more than that his counsel was busy. His client was unavailable for consultation for an extended time. Although entered, the opinion was not issued and available because the court was unable to make copies to serve it. And counsel discovered that not only did the FSM Appellate Rules apply to this appeal but that there was also a Chuuk state statute to comply with. These combined appear to constitute good cause.

       Furthermore, a number of cases have reversed denials of motions to extend under the "unique circumstances" doctrine. See, e.g., California v. Tahoe Regl Planning Agency, 766 F.2d 1316, 1318 (9th Cir. 1985) (appellant delayed filing notice of appeal until written order denying his motion to modify injunction issued, but no written order issued); Mennen Co. v. Gillette Co., 719 F.2d 568, 570-71 (2d Cir. 1983) (appellant relied on judge saying judgment would be entered after one submitted by counsel but clerk entered one earlier); National Indus., Inc. v. Republic Natl Life Ins. Co., 677 F.2d 1258, 1262-65 (9th Cir. 1982) (trial court initially granted an extension, but after the prescribed time had passed, reversed itself and denied the extension; reversed on appeal because the appellant had relied on the granted extension and delayed filing its appeal notice when it still could have filed a timely notice). In the past, we have, without calling it that or referring to other authority, relied on this "unique circumstances" doctrine to hold valid what would otherwise have been an improperly (and thus untimely) filed notice of appeal. See Kosrae Island Credit Union v. Obet, 7 FSM Intrm. 193, 194 (App. 1995) (appeal would not be dismissed when appellant relied on court employees erroneous advice that filing a notice of appeal with the state court was sufficient, although to properly prefect the appeal, the notice had to be filed with both the state and FSM courts).

       Under the unique combination of circumstances present here: the state courts lack of a working copy machine, which delayed the entry of that courts opinion becoming known to the parties; Bualuays protracted unavailability for consultation with his counsel coupled with the short time left to appeal once Bualuay became available and the contemporaneous press of urgent election cases; Bualuays counsels diligent and good faith efforts; and the lack of prejudice to the opposing parties, leads us to conclude that both excusable neglect and good cause existed to extend time to appeal, and that it would have been an abuse of discretion to deny the motion requesting it. Furthermore, a court may abuse its discretion by an unexplained, lengthy delay or by failure to exercise its discretion within a reasonable time. In re Certification of Belgrove, 8 FSM Intrm. 74, 78 (App. 1997) ("The failure to

[11 FSM Intrm. 148]

exercise discretion is an abuse of the discretion.").

      We therefore reverse the "denial" of Bualuays motion to extend time to appeal. The grant of a motion to extend time to appeal retroactively validates a previously-filed notice of appeal. McNicholes v. Subotnik, 12 F.3d 105, 107 (8th Cir. 1993); Hinton v. City of Elwood, 997 F.2d 774, 777-79 (10th Cir. 1993). Similarly, our reversal of the lower courts "denial" of Bualuays motion to extend retroactively validates Bualuays certiorari petition/notice of appeal filed on March 19, 1999, within the thirty-day extension period. As a result, that petition is deemed timely filed. Consequently, we have jurisdiction to hear this appeal. We therefore may proceed to its merits.

III. Issues Presented by Bualuay

      Bualuay presents the following issues for appellate review. He contends 1) that the trial court erroneously granted summary judgment to the Ranos when there were, in his view, genuine issues of material fact present; 2) that the trial court erred in not granting summary judgment in his favor; 3) that the trial court based its judgment on an erroneous interpretation of the Trust Territory High Court judgment and upon clearly erroneous legal conclusions and facts not in evidence; and 4) that the trial judges actions and statements during the motion hearing and his alleged extrajudicial knowledge of some material facts constitute reversible error because it meant that the trial judges impartiality might be reasonably questioned.

IV. Analysis

A. Judges Impartiality

      We address the last of Bualuays issues first because if Bualuay were to prevail on that issue the case would be remanded for a different trial judge to consider the summary judgment motions. Bualuay contends that, during the motion hearing, the trial judge made frequent references to enlisting the aid of Divine Providence and the Holy Spirit and a wish that the judgment be expedited and settlement and peace between the parties be achieved before Easter (then ten days away), and that this shows that the trial judge was predisposed against Bualuays case and preferred that the parties settle. Bualuay also contends that the trial judges mention of the parties works and projects within Mochikiss two parts and item 4 of the trial court judgment that states that the plaintiff shall reside where his division is located and the defendants shall reside where their house is located, both show that the trial judge had extrajudicial knowledge of facts in the case.

      However, at the motion hearing, Bualuays trial counsel (not his current counsel) also engaged in appeals to divine aid. There is nothing untoward about a judge encouraging settlement. Trial judges are expected to suggest the desirability of possible settlement. That is a normal part of their job. The appeals to divine aid and the hope for settlement or judgment before Easter do not appear to be grounds to disqualify the trial judge. While the judge may have hoped that the case could be resolved by April 7, 1996 (Easter), the record shows that he did not "expedite" his judgment to meet that date. The judgment was not entered until May 3, 1996, showing that he spent some time deliberating over it.

      Furthermore, Bualuays complaint mentions that the Ranos built dwelling houses on Mochikis and were present on the land without his consent, Complaint  6,7 (Sept. 12, 1995), and his Motion for Temporary Restraining Order at 2 (Sept. 12, 1995) states, among other things, that the Ranos "have continued to live on Mochikis." The knowledge that the Ranos lived on a part of Mochikis was thus in the record and did not stem from an extrajudicial source. There was also no extrajudicial conduct when the trial judge received information from the former special master because both counsel were present.

[11 FSM Intrm. 149]

      There is therefore no need to remand the matter for a new trial judge to consider the summary judgment motions. We next proceed to Bualuays other assignments of error.

B. The Ranos Summary Judgment Motion

1. The Parties Contentions

      Bualuay contends that the Ranos should not have been granted summary judgment because there were genuine issues of material fact were present. Bualuay contends that since the trial court judgment did not refer to the summary judgment standards, the trial judge actually decided the case on its merits. This, he contends, deprived him of his opportunity for a full trial on the merits because it is improper to decide cases on summary judgment if any genuine issues of material fact are present. Bualuay also contends that, other than that he owns half of Mochikis by virtue of his purchase from Nessa, ownership of the other half is disputed and if he does not own that other half then the boundary between the two halves is a genuine issue.

      Bualuay contends that inferences can be drawn from the Trust Territory High Court judgment in favor of his contention that he owns all of Mochikis (the judgments lack of mention of who owns the other half of Mochikis and its statement that "the plaintiff shall take nothing from this action") and show that Enisa never owned any of Mochikis. Bualuay also contends that genuine issues exist about where the other half is and about the measurement of the two sections of Mochikis.2

       The Ranos contend there were no issues of material fact because the High Court judgment states that half of Mochikis belongs to Nessa and because the special master, whose recounting to the trial judge and counsel of his earlier findings was not objected to, determined that half was for Nessa and half for Enisa. The Ranos contend that since there is no genuine issue, the parties each own half of Mochikis and that since Bualuay claims all of Mochikis, he has effectively waived any objection that the trial judge drew the boundary between the two halves incorrectly or that the Ranos are located on the wrong part of Mochikis.

2. Standard of Review

     If a genuine issue of material fact was present then the trial court had to deny the summary judgment motion. Iriarte v. Etscheit, 8 FSM Intrm. 231, 236 (App. 1998). An appellate court uses the same standard in reviewing the grant or denial of a summary judgment that the trial court initially did. Taulung v. Kosrae, 8 FSM Intrm. 270, 272 (App. 1998). Therefore, if the appellate court concludes that a genuine issue of material fact was present, then it must rule that the summary judgment should have been denied; and if it concludes that a genuine issue is not present, then, viewing the facts in the light most favorable to the nonmovant, it rules, de novo on whether the movant was entitled to judgment as a matter of law. Id. This is true even when, as here, the appeal comes from another appellate court. See, e.g., Union Oil Co. of Cal. v. Department of Revenue, 560 P.2d 21, 23 n.5 (Alaska 1977); Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781 (Alaska 1976) (when a case has first been appealed to a lower appellate court, the reviewing court will approach the issues independently).

[11 FSM Intrm. 150]

3. Discussion

a. Ownership of Mochikis

      The Trust Territory judgment held that Nessa owned only half, not all, of Mochikis. On the High Court judgments first page, the first special masters finding stated that "Nessa and her group . . . owned Nepunuk, Wisou and the half () of the taro patch is [sic] known as Mochikis," Enisa v. Nessa, Civ. No. 407, Judgment Order at 1 (Mar. 26, 1968). The judgment decree, when mentioning Mochikis, referred to "defendant Messas [sic] half of said taro swamp," id. at 3, and "defendant Nessas half of the taro swamp," id. at 4. The High Court thus adopted the special masters finding that Nessa owned only half of Mochikis. When the High Court concluded that Enisa had "no right, title or interest in and to the above-described lands and that the plaintiff shall take nothing from this action," id. at 4, the phrase "above-described lands" refers to those lands mentioned in the judgment) Nepunuk, Wisou and the half of Mochikis owned by Nessa. The phrase does not refer to the other, unmentioned half of Mochikis.

      The High Court judgment itself does not specifically say that Enisa owned the other half of Mochikis. But that judgment does clearly state that Nessa owned only half of Mochikis. Since Bualuays only claim to Mochikis is through his purchase of Nessas rights, Bualuay cannot own any more of Mochikis than the half that Nessa owned. Furthermore, that judgment was res judicata) already decided by the Trust Territory High Court in Civil Action No. 407) and binding on the parties to that case and all claiming under them.3 It is therefore binding on the parties to this case. There was therefore no genuine issue of fact as to whether Bualuay owned half or all of Mochikis. Bualuay owned only half. The Ranos were therefore entitled as a matter of law to a summary judgment that Bualuay owned only half of Mochikis. That part of the trial judges summary judgment, and its affirmance by the Chuuk State Supreme Court appellate division, was proper and is hereby affirmed.

b. Boundary Between the Halves of Mochikis

      The High Court judgment states that "Messas [sic] half of said taro swamp are as delineated and marked on the diagram marked 'Courts sketch showing the taro swamp Mochikis, that is, the defendant Nessas half of the taro swamp are that portion designated as 'claimed by the defendant." Enisa v. Nessa, Civ. No. 407, Judgment Order at 1 (Mar. 26, 1968). The court sketch, however, seems to show as "claimed by the defendant" all of what is labeled Mochikis. It also shows a straight line running from a "Banana tree" that might have been considered the boundary line between the two halves of Mochikis. (If it is, it runs approximately parallel to the road that runs along one side of Mochikis and across, almost at a right angle to, where the Chuuk State Supreme Court trial judge put the boundary, which he ran from the road out to the mangroves.) The sketch is confusing.

     Furthermore, both counsel, at oral argument, agreed that the cardinal directions on the sketch map were misoriented. That is, north on the sketch is actually west, east on the sketch is actually north, and south on the sketch is actually east, and west on the sketch is south. We see no reason to doubt the counsels representation on this point. We cannot determine whether the High Court first determined that Nessa owned the northern half of Mochikis, and then misplaced where north was on the sketch; or whether it determined what part of Mochikis Nessa owned and then misidentified that

[11 FSM Intrm. 151]

half as "northern"; or whether there is some other explanation. The High Court Judgment Order itself does not identify Nessas half as northern or in any way other than by reference to the sketch. Regardless, it is apparent that a genuine issue of material fact exists about where the boundary between the two halves of Mochikis lies.

      The Ranos contend that, by claiming all of Mochikis, Bualuay waived any claim that the trial judges boundary was in error. Bualuay, however, did raise the boundarys uncertain location as an example of a genuine issue of material fact that should preclude summary judgment for the Ranos. Bualuay thus has not waived the claim that the Chuuk state trial judges boundary is in the wrong place.

      Because a genuine issue of material fact exists about where the boundary between the two halves of Mochikis lies, summary judgment on this issue is not possible. The trial courts judgment concerning the boundary is therefore vacated. That issue will be remanded to the trial court. Depending on where the boundary is determined to be, Bualuays trespass cause of action and the relief he seeks, an injunction and damages, might still lie and are thus reinstated.

C. Bualuays Summary Judgment Motion

      Bualuay contends that not only should the trial judge have denied the Ranos summary judgment motion but also that the trial judge should have granted him summary judgment. He asserts that this is so since the High Court judgment did not specifically mention anywhere that Enisa owned the other half of Mochikis and since, in his view, that judgment did not even imply that Enisa owned any part of Mochikis. The Ranos assert that not only did the trial judge not err in granting them summary judgment but also contend that Bualuay could not have been granted summary judgment because he had not overcome the Ranos affirmative defenses.

      While it is true that a plaintiff cannot be granted summary judgment unless he has overcome the defendants affirmative defenses, FSM Dev. Bank v. Rodriguez, 2 FSM Intrm. 128, 130 (Pon. 1985), we need not go that far. A summary judgment that was properly made in the Ranos favor precludes one in Bualuays favor. Since we have affirmed a partial summary judgment in the Ranos favor, Bualuay, as a matter of law, cannot be entitled to a contrary summary judgment.

D. Trial Judges Erroneous Interpretations and Conclusions

      Bualuay contends that the trial judge based his judgment on an erroneous interpretation of the High Court judgment and on erroneous legal conclusions. These contentions are all related to Bualuays earlier contentions concerning summary judgment. They are discussed above and were fully considered when we affirmed in part, and vacated in part the trial judges summary judgment. We need not reconsider them here.

V. Conclusion

       Accordingly, we conclude that we may properly exercise jurisdiction over this appeal. We affirm the Chuuk State Supreme Court trial division summary judgment, and the appellate divisions affirmance of it, that Bualuay owns only half of Mochikis; and we vacate the summary judgment as to the location of the boundary between the two halves of Mochikis. Because summary judgment on the boundarys location is not possible, Bualuays trespass claim is reinstated. The boundary issue is remanded to the Chuuk State Supreme Court for its trial division to conduct further proceedings consistent with this opinion. The parties are to bear their own costs.

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Footnotes:

1. When an appellate rule has not been construed by the FSM Supreme Court and it is nearly identical to a United States counterpart, we may look to U.S. practice for guidance. Iriarte v. Etscheit, 8 FSM Intrm. 231, 235 (App. 1998); Jano v, King, 5 FSM Intrm. 326, 329 (App. 1992).

2. These assertions also form a basis for Bualuays contention that the trial courts judgment was based on an erroneous interpretation of the High Court judgment and upon clearly erroneous legal conclusions and facts not in evidence.

3. Even if this res judicata holding is considered a different theory (and we think it is not) than the one used by the Chuuk State Supreme Court trial and appellate divisions, an appellate court may affirm the trial courts summary judgment on a different theory when the record contains adequate and independent support for that basis. E.g., Bolden v. PRC Inc., 43 F.3d 545, 548 (10th Cir. 1995).