KOSRAE STATE COURT TRIAL DIVISION
Cite as Heirs of Palik v. Heirs of Henry
12 FSM Intrm. 415 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 415]

HEIRS OF BINGHAM PALIK,
Appellants,
 
vs.
 
HEIRS OF MOSES HENRY,
Appellees.
 
CIVIL ACTION NO. 3-04
 
ORDER DENYING MOTION TO DISMISS APPEAL
 
Yosiwo P. George
Chief Justice
 
Hearing: March 25, 2004
Decided: April 8, 2004
APPEARANCES:

For the Appellants:                  Albert Welly
                         j Kosrae Legislature
                                                 P.O. Box 187
                                                 Lelu, Kosrae FM 96944
 
For the Appellees:                 Sasaki George, Esq.
                                                Micronesian Legal Services Corporation
                                                P.O. Box 38
                                                Lelu, Kosrae FM 96944

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[12 FSM Intrm. 416]

HEADNOTES

Appellate Review ) Notice of Appeal
     By Kosrae statute and State Court Rules of Appellate Procedure, the notice of appeal from Land Court must state specific legal grounds upon which such appeal is based. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 418-19 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal
     Violation of filing a timely notice of appeal requires dismissal of the appeal due to lack of jurisdiction. However, other violations of appellate requirements may be subject to dismissal or other sanctions. Authority to dismiss a case on appeal on procedural grounds is discretionary. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 419 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Notice of Appeal
     Following review of the transcript and record, appellants may also request to amend the issues stated in the notice of appeal from Land Court. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 419 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal; Appellate Review ) Notice of Appeal
     The appellants’ failure to state the issues on appeal in their notice of appeal is a procedural violation that may be subject to sanctions. Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregarding of the rules resulting in prejudice to the opposing party. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 419 (Kos. S. Ct. Tr. 2004).
 
Courts
     The State of Kosrae’s judicial power is vested in the State Court and such inferior courts as may be created by law. The Kosrae Land Court was established as an inferior court within the Kosrae State Court system. The State Court has jurisdiction to review all decisions of inferior courts. The Kosrae Constitution does not specify which division of the State Court is required to review decisions of inferior courts. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 420 (Kos. S. Ct. Tr. 2004).
 
Courts
The term "appellate court" is defined as the FSM Supreme Court appellate division. Kosrae State Court decisions may be appealed to the FSM Supreme Court appellate division. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 420 (Kos. S. Ct. Tr. 2004).

Courts
     Since the Kosrae Constitution provides that appeals from the State Court trial division may be made to the State Court appellate division, as shall be prescribed by law, enabling legislation is required to implement appeals from the trial division to the State Court appellate division, and when no such legislation has been passed by the Legislature and signed into law, no constitutional or statutory authority exists to authorize appeals from trial division to the State Court appellate division. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 420 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ; Courts
      The Kosrae State Court has jurisdiction to review all decisions of inferior courts. Neither the Kosrae Constitution nor state law requires that Land Court decisions be appealed to the State Court appellate division. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 421 (Kos. S. Ct. Tr. 2004).
 
Courts
     The State Court has the power to make rules and orders, and do all acts, not inconsistent with

[12 FSM Intrm. 417]

law or rule, required for the due administration of justice. It is specifically authorized to govern appeal procedures for appeals from the Land Court and procedures for Land Court appeals to the State Court are established in the Kosrae Rules of Appellate Procedure. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 421 (Kos. S. Ct. Tr. 2004).
 
Constitutional Law ) Kosrae ) Interpretation
     A practice which has been engaged in by a branch of government for a significant period of time is entitled to great weight in establishing the constitutionality of that practice. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 421 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ; Courts
     The Kosrae State Court trial division has jurisdiction to review all decisions of inferior courts, including decisions entered by the Kosrae Land Court. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 421 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Notice of Appeal
     Generally, a properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court. In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422 (Kos. S. Ct. Tr. 2004).
 
Jurisdiction
     Subject matter jurisdiction may never be waived and may be raised at any time. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal
     If it appears that the court lacks subject matter jurisdiction the case will be dismissed. Failure to file the notice of appeal within the statutory time will result in dismissal of the appeal. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal; Appellate Review ) Notice of Appeal
     There are two filing requirements for a notice of appeal from the Kosrae Land Court: first at the Kosrae State Court and second at the Kosrae Land Court. The first filing requirement actually dockets the appeal, as Kosrae State Court serves as the appellate court for Kosrae Land Court decisions. The second filing requirement does not docket the appeal. It serves the purpose of commencing the preparation of the transcript and record by the Land Court. Thus, an appeal from Kosrae Land Court is timely filed (and the Kosrae State Court has subject matter jurisdiction to hear the appeal) when the notice of appeal is filed with the Kosrae State Court within sixty days of service of the written decision upon the appellants even though there was a two day delay in filing the notice of appeal with the Land Court. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal
     Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422 (Kos. S. Ct. Tr. 2004).
 
Appellate Review ) Dismissal; Appellate Review ) Notice of Appeal
     The appellants’ late filing of the copy of the notice of appeal with the Land Court is a procedural violation that may be subject to sanctions. The proper procedure is to file the notice of appeal with Kosrae State Court, and file a copy of the notice of appeal with Kosrae Land Court, both within the sixty day period. When the appellees have not demonstrated any prejudice by the two-day delay, the appellants’ failure to file the copy of the notice of appeal with the Land Court within sixty days does

[12 FSM Intrm. 418]

not constitute grounds for the appeal’s dismissal, only sanctions. Heirs of Palik v. Heirs of Henry, 12 FSM Intrm. 415, 422-23 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     On January 26, 2004, the Appellees filed a Motion to Dismiss the Appeal. Appellants filed their Opposition to the Motion on March 18, 2004. Appellees filed a Response on March 24, 2004. The hearing on the Appellees’ Motion was held on March 25, 2004. Albert Welly appeared for the Appellants. Appellees were represented by Sasaki George, MLSC.

     After hearing from the parties, consideration of the Motion and record, I took the matter under advisement. For the reasons set forth below, the Appellees’ Motion to Dismiss is denied. This Order explains my ruling and reasoning.

I. Factual Background.

     On November 10, 2003, the Kosrae Land Court issued its decision on parcel 040K01 awarding ownership to Appellees Heirs of Moses Henry. The Land Court decision was served upon the Appellants on November 12, 2003. On January 8, 2004, Appellants Heirs of Bingham Palik filed a Notice of Appeal and a Request for Transcript of Proceedings with this Court. Appellants served the Notice of Appeal upon the Land Court on January 15, 2004 and upon Appellees on January 20, 2004. Appellees’ Motion to Dismiss followed.

II. Issues Presented.

     Appellees present three grounds for dismissal of the appeal:

1. The Notice of Appeal does not state the specific legal grounds upon which the appeal is made;

2. The appeal was not filed in the proper court, as the Trial Division of the Kosrae State Court does not have authority to review decisions of the Kosrae Land Court; and

3. The Notice of Appeal was not served upon the Kosrae Land Court within the sixty day period required by State Law and therefore the appeal is untimely.

Appellees seek dismissal of the appeal. Appellants oppose the Motion to Dismiss on public policy grounds. Appellants argue that this Court should hear the appeal on its merits, in the interests of justice.

III. Legal Analysis.

1. The Notice of Appeal does not state the specific legal grounds upon which the appeal is made

     Appellees argue that Appellants violated statutory requirements by failing to state the legal grounds upon which the appeal is based, as required by Kosrae State Code, Section 11.614(3). The Notice of Appeal filed by the Appellant does not state the legal grounds upon which the appeal is based upon. The Kosrae State Rules of Appellate Procedure, Rule 3(c) also requires that the notice of appeal

[12 FSM Intrm. 419]

state specific legal grounds upon which such appeal is based. Appellants have violated statutory requirements by failing to state the legal grounds upon which the appeal is based upon, in their notice of appeal. Violation of filing a timely notice of appeal requires dismissal of the appeal due to lack of jurisdiction. O’Sonis v. Bank of Guam, 9 FSM Intrm. 356 (App. 2000). However, other violations of appellate requirements may be subject to dismissal or other sanctions. Kephas v. Kosrae, 3 FSM Intrm. 248 (App. 1987); In re Malon, 8 FSM Intrm. 591 (Chk. S. Ct. App. 1998). Authority to dismiss a case on appeal on procedural grounds is discretionary. In re Lot No. 014-A-21, 9 FSM Intrm. 484 (Chk. S. Ct. Tr. 1999).

     Appellees have not demonstrated any prejudice from Appellants’ failure to list the legal grounds of the appeal in the Notice of Appeal. In practice, even if the Appellants had listed the grounds of the appeal, Appellees could not research those issues until preparation of the transcript and record was completed by the Land Court, ninety (90) days later. See Kos. S.C. § 11.614(2)(a). Following review of the transcript and record, the Appellants may also request amendment to the issues stated in the Notice of Appeal. Moreover, the issues presented on appeal as stated in a Notice of Appeal, may be of negligible value to the Appellees.

     In the case of Heirs of Henry v. Bingham Palik and Sigrah, Civil Action No. 124-00, involving the same parties to this appeal, the Heirs of Moses Henry (appellants in Civil Action No. 124-00) listed six grounds for appeal of the Determination of Ownership entered by the Kosrae State Land Commission. (Notice of Appeal filed Dec. 18, 2000). The six grounds of appeal listed by the Heirs of Moses Henry in their notice of appeal were standard "boilerplate" issues and did not provide details of specific errors allegedly committed by the Kosrae State Land Commission. Indeed, issue # 6 in the notice of appeal for Heirs of Henry v. Bingham Palik and Sigrah states that: "Appellant reserves the right to bring forth other grounds for appeal once he has the opportunity to review the transcript and other parts of the record on appeal in this matter."

     Thus the position of Heirs of Moses Henry, as shown by their Notice of Appeal in Civil Action No. 124-00, is that review of the transcript and record are necessary to properly formulate the issues on appeal. The Appellees did not demonstrate prejudice resulting from the Appellants failure to list the issues on appeal in their Notice of Appeal.

     Appellants’ failure to state the issues on appeal in their Notice of Appeal is a procedural violation that may be subject to sanctions. Kephas v. Kosrae, 3 FSM Intrm. 248 (App. 1987); In re Malon, 8 FSM Intrm. 591 (Chk. S. Ct. App. 1998). Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregarding of the rules resulting in prejudice to the opposing party. Tafunsak v. Kosrae, 6 FSM Intrm 467 (App. 1994). I conclude that the Appellants’ failure to list the issues on appeal in their Notice of Appeal did not prejudice the Appellees. I further conclude that Appellants’ failure to list the legal grounds in their Notice of Appeal, is a procedural error and is not an adequate ground for dismissal of the appeal. Appellees’ argument for dismissal of the appeal on this ground is rejected.

     As this is an issue of first instance before this Court, Appellants shall not be sanctioned for their failure to list the issues in their Notice of Appeal. However, parties are put on notice that in future filings, strict compliance with all statutory requirements and the Appellate Rules shall be required, and that violation of either shall subject the party to sanctions.

2. The appeal was not filed in the proper court, as the Trial Division of the Kosrae State Court does not have authority to review decisions of the Kosrae Land Court

     Appellees have challenged this Court’s jurisdiction over appeals made from decisions of the

[12 FSM Intrm. 420]

Kosrae Land Court. Appellees claim that the appellate division of Kosrae State Court is required by the Kosrae State Constitution and Kosrae State Law to hear appeals from decisions entered by the Kosrae Land Court. Finally, Appellees argue that no enabling legislation is required to constitute and operate the appellate division of Kosrae State Court.

     A review of the Kosrae State Constitution and State Law is necessary to fully examine Appellees’ argument. Kosrae State Constitution, Article VI governs the Judiciary. Article VI, Section 1 provides that: "The judicial power of the State is vested in the State Court and such inferior courts as may be created by law."

     The Kosrae Land Court was established as an inferior court within the Kosrae State Court system, through the Land Court Act of 2000, codified at Kosrae State Code, Title 11, Chapter 6. See Kos. S.C. §§ 6.1501, 11.613.

     Kosrae State Constitution, Article VI, Section 2 states that: "Each justice is a member of both the trial division and the appellate division, except that sessions of the trial division may be held by one justice. . . . At least three justices shall hear and decide appeals. . . ."

     Kosrae State Constitution, Article VI, Section 6 states that:

The State Court has jurisdiction to review all decisions of inferior courts. Decisions of the Trial Division of the State Court may be appealed to the appellate division of the State Court, as shall be prescribed by law. Decisions of the highest division of the State Court may be appealed to the appellate division of the Supreme Court of the Federated States of Micronesia.

The Kosrae State Constitution provides that the State Court has jurisdiction to review all decisions of inferior courts. The State Court has jurisdiction to review decisions of the Land Court, an inferior court. The Kosrae State Constitution does not specify which division of the State Court is required to review decisions of inferior courts.

     State Law prescribes procedures for appeals in Kosrae State Code, Title 6, Chapter 4. The right to appeal and the power of the "appellate court" are set forth in Kosrae State Code, Sections 6.403 and 6.404. The term "appellate court" is defined as the "Appellate Division of the Supreme Court of the Federated States of Micronesia." Kos. S.C. § 1.201(7). Therefore, these procedures for appeal, as established by Sections 6.403 and 6.404, only govern appeals from Kosrae State Court to the Appellate Division of the Supreme Court of the Federated States of Micronesia. Decisions of the Kosrae State Court may be appealed to the Appellate Division of the Supreme Court of the Federated States of Micronesia. Kosrae v. Langu, 9 FSM Intrm. 243 (App. 1999).

     Kosrae State Constitution, Article VI, Section 6 provides that appeals from the trial division of the State Court may be made "to the appellate division of the State Court, as shall be prescribed by law." (emphasis added). Based upon the language of Article VI, Section 6, enabling legislation is required to implement appeals from the trial division to the appellate division of the State Court. No such legislation has been passed by the State Legislature and signed into law. Therefore, no constitutional or statutory authority exists to authorize appeals from trial division to the appellate division of the State Court.

     Kosrae State Code, Title 6, does not specify establish any procedures for appeals from the Land Court to the State Court. Instead, the Land Court Act of 2000 governs appeals from decisions entered by the Kosrae Land Court pursuant to Kosrae State Code, Section 11.614. Section 11.614(2) specifies

[12 Fsm Intrm. 421]

that an appeal is commenced through filing of the notice of appeal as follows: "An appeal shall be made by filing a notice of appeal with the Kosrae State Court and . . . ."

     All references to the reviewing court in the Land Court Act are made to the "State Court." There is no specific reference to the trial division or appellate division of the State Court found anywhere in Kosrae State Code, Title 11, Chapter 6. Accordingly, the Land Court Act does not require decisions of the Land Court to be appealed to the appellate division of Kosrae State Court.

     In summary, the Kosrae State Constitution, Article VI, Section 6 specifies that the State Court has jurisdiction to review all decisions of inferior courts. Neither the Kosrae State Constitution nor Kosrae State Law requires that decisions of the Land Court be appealed to the appellate division of the State Court. State Law does not establish appellate procedure for the appellate division of Kosrae State Court. Kosrae State Code, Sections 6.403 and 6.404 apply only to the Appellate Division of the Supreme Court of the Federated States of Micronesia. Consequently, it is proper for this Court to adopt rules to govern appeals from the Land Court to the State Court. The State Court has the power to make rules and orders, and do all acts, not inconsistent with law or rule, required for the due administration of justice. Kos. S.C. § 6.101. The State Court is specifically authorized to govern appeal procedures for appeals from the Land Court. Kos. S.C. § 11.614(4). Procedures for appeals from the Land Court to the State Court are established in the Kosrae Rules of Appellate Procedure.

     It has been this Court’s long standing interpretation that appeals from the Kosrae State Land Commission, and thereafter appeals from the Kosrae Land Court, be made to the trial division of the State Court. This practice has continued unchanged for more than twenty years. A practice which has been engaged in by a branch of government for a significant period of time is entitled to great weight in establishing the constitutionality of that practice. Siba v. Sigrah, 4 FSM Intrm. 329 (Kos. S. Ct. Tr. 1990).

     Based upon this authority, I conclude that pursuant to the Kosrae State Constitution and State Law, the trial division of the Kosrae State Court has jurisdiction to review all decisions of inferior courts, including decisions entered by the Kosrae Land Court.

     Appellees’ argument that the trial division of the Kosrae State Court does not have jurisdiction to hear appeals from the Kosrae Land Court is not supported by the Kosrae State Constitution or State Law. Appellees’ argument on this ground is therefore rejected.

3. The notice of appeal was not served upon the Kosrae Land Court within the statutory 60 day period and therefore the appeal is untimely.

     Appellees argue that the statutory sixty (60) day period for filing the appeal has passed without service of the Notice of Appeal upon the Kosrae Land Court and therefore the appeal is untimely. Appellees argue that Appellants’ failure to serve a copy of the Notice of Appeal upon the Kosrae Land Court within the sixty day period is fatal to their appeal. The subject Land Court decision was served upon the Appellants on November 12, 2003. It is undisputed that the Appellants filed the Notice of Appeal with the Land Court on January 15, 2004, more than sixty days after service of the decision upon the Appellants.

     Kosrae State Code, Section 11.614(2) establishes the filing requirements for an appeal from a Land Court decision. Section 11.614(2) states that: "(2) An appeal shall be made by filing a notice of appeal with the Kosrae State Court and filing a certified copy of the notice of appeal with the Land Court within the time limits set forth in this section."

[12 FSM Intrm. 422]

      The time limits are specified in Kosrae State Code, Section 11.614(1): "(1) An appeal from an adjudicated matter by the Land Court shall be made within sixty (60) days of service of the written decision of the Land Court Justice upon the party appealing the decision."

      Pursuant to these statutory provisions, the deadline for filing the Notice of Appeal was sixty days from November 12, 2003, or January 11, 2004. Since January 11, 2004 was a Sunday, and Monday, January 12, 2004, was a legal holiday, the filing deadline was extended to Tuesday, January 13, 2004. Appellants filed the copy of the Notice of Appeal at the Land Court on January 15, 2004. Appellants did not comply with the requirements of Kosrae State Code, Sections 11.614(1) and (2).

      Generally, a properly filed notice of appeal transfers jurisdiction from the lower court to the appellate court. Damarlane v. Pohnpei, 9 FSM Intrm. 114 (App. 1999). In the absence of a timely notice of appeal, an appellate court has no jurisdiction over an appeal. O’Sonis v. Bank of Guam, 9 FSM Intrm. 356 (App. 2000). The issue of whether a court has subject matter jurisdiction is an issue that may be raised at any time. Abraham v. Kosrae, 9 FSM Intrm. 57 (Kos. S. Ct. Tr. 1999); Hartman v. FSM, 6 FSM Intrm. 293 (App. 1993).

     Here, the Appellees have raised the issue of whether this Court has jurisdiction over the appeal, due to the failure of the Appellants to comply with the filing requirements of Kosrae State Code, Section 11.614. Subject matter jurisdiction may never be waived and may be raised at any time. Island Dev. Co. v. Yap, 9 FSM Intrm. 220 (Yap 1999). If it appears that the court lacks subject matter jurisdiction the case will be dismissed. Trance v. Penta Ocean Constr. Co., 7 FSM Intrm. 147 (Chk. 1995). Failure to file the notice of appeal within the statutory time will result in dismissal of the appeal. O’Sonis v. Bank of Guam, 9 FSM Intrm. 356 (App. 2000) (affirming proper dismissal of the appeal).

     This Court has carefully reviewed Kosrae State Code, Section 11.614, which establishes two filing requirements: first at the Kosrae State Court and second at the Kosrae Land Court. The first filing requirement actually dockets the appeal, as Kosrae State Court serves as the appellate court for decisions of the Kosrae Land Court. The second filing requirement does not docket the appeal. The second filing requirement serves the purpose of commencing the preparation of the transcript and record by the Land Court. This purpose is stated by Kosrae State Code, Section 11.614(2)(a):

(a) Within 90 (ninety) days of receipt of the certified copy of the notice of appeal, the Land Court shall provide to the State Court the following items from the decision being appealed:

(i) All original records, pleading, documents and evidence received;

(ii) A complete written copy of the transcript of proceedings; and

(iii) A written copy of the findings and decision of the Land Court Justice.

     Based upon these provisions, I conclude that this appeal was timely filed when the Notice of Appeal was filed with the Kosrae State Court within sixty days of service of the written decision upon the Appellants. Accordingly, this appeal is timely filed and this Court has subject matter jurisdiction to hear the appeal. Dismissing an appeal on purely procedural grounds is a sanction normally reserved for severe disregard of the rules resulting in prejudice to the opposing party. Tafunsak v. Kosrae, 6 FSM Intrm. 467 (App. 1994). Here, the Appellees have not demonstrated any prejudice resulting from the two day delay in Appellants’ filing of the copy of the Notice of Appeal at the Land Court.

     Appellants’ late filing of the copy of the notice of appeal with the Land Court is a procedural

[12 FSM Intrm. 423]

violation that may be subject to sanctions. Kephas v. Kosrae, 3 FSM Intrm. 248 (App. 1987); In re Malon, 8 FSM Intrm. 591 (Chk. S. Ct. App. 1998). As this is an issue of first instance before this Court, Appellants shall not be sanctioned for their late filing of the copy of the Notice of Appeal at the Land Court. However, future appellants are put on notice that the proper procedure is to file the Notice of Appeal with Kosrae State Court, and file a copy of the Notice of Appeal with Kosrae Land Court, both within the sixty day period. In future appeals, strict compliance with all statutory requirements and the Appellate Rules shall be required, and violation of either shall subject the party to sanctions.

     Appellants’ failure to file the copy of the Notice of Appeal with the Land Court within sixty days does not constitute grounds for dismissal of the appeal. Appellees’ argument on this ground is rejected.

IV. Conclusion.

     Appellees’ Motion to Dismiss Appeal is denied. The Land Court shall complete its preparation of the transcript and record for this matter no later than April 15, 2004. The briefing shall be set following receipt of the transcript and record.

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